ROGER B TANEY JACKSONIAN JURIST

03699

ROGER B. TANEY: JACKSONIAN JURIST

ROGER B. TANEY:
JACKSONIAN JURIST

BY

CHARLES W. SMITH, JR., PH.D.

Rutgers University

CHAPEL HILL

THE UNIVERSITY OF NORTH CAROLINA PRESS
1936

J 2 93*% BY

CAROLINA PRESS

PRINTED IN THE UNITED STATES OF AMERICA BY
THE SEEMAN PRINTERY, INC., DURHAM, N. C.

To

ETTA HART SMITH

THERE IS SOMETHING ABOUT
TANEY THAT YOU WILL LIKE

PREFACE

As THE STORY of Federalist thought and action is incomplete
without John Marshall, so the story of Jacksonian Democracy
is not complete without Roger B. Taney. Taney's place in
the democratic movement has never been accurately appraised
and the many implications of his theory are still to a certain
extent unappreciated. Biographies of him have been written,
but until now no one has attempted a thorough discussion of
his political theory and his contribution to constitutional law.
Both as a Jacksonian statesman and as an American jurist of
high rank he deserves such a discussion. This book is an
attempt to contribute something to this aspect of Taney's
career.

I owe my thanks to Professor Everett S. Brown of the
University of Michigan, who first suggested the possibility of
this study and gave helpful advice at the beginning of the
undertaking. I am indebted to Dr. Llewellyn Pfankuchen,
of the University of Wisconsin, for carefully reading and
criticizing practically the whole of the manuscript and for
suggestions made at various stages of its preparation, and to
Professor Ray A. Brown and Dr. John D. Lewis of the same
University for helpful suggestions made in regard to par-
ticular chapters. I am grateful to my wife, Essa Esarey
Smith, for discerning suggestions in regard to style and con-
tent and for help in proofreading.

CHARLES W. SMITH, JR.

Rutgers University
May 30, 1935.

[vii]

CONTENTS

PAGE

PREFACE vii

CHAPTER

I. BIOGRAPHY 3

Introduction

Taney's Early Life and Education

Federalist Leader in Maryland

As a Leader of Jacksonian Democracy

Chief Justice of the Supreme Court

Opinions of the Critics

II. THE SOVEREIGNTY OF THE

CORPORATE PEOPLE 22

Introduction

Early American Political Theory
The Theory of Jacksonian Democracy
Individual Rights are Not Natural Rights
The Social Compact and Popular Sovereignty
The Theoretical Background for Taney's Ideas
The Citizen is Subject as Well as Sovereign
The Status of Individuals in the State

III. THE SOVEREIGN WILL 41

The Nature of Sovereignty

Taney's Application of his Theory of Sovereignty

The Government as the Agent of the Sovereign

How the Sovereign Will is Expressed

Conclusion

IV. THE SOVEREIGN POWER MUST NOT BE

LIMITED BY GROUPS WITHIN

THE STATE 65

The Democratic Movement in America

Oligarchy Against Democracy

The Weapons of a Wealthy Class

A Group Which Threatens Popular Sovereignty is a

Public Enemy

The Government must serve only the Sovereign People
Taney's Place in Jeffersonian Democracy
The Danger in Chartered Privileges
The Maintenance of the General Will

[ix]

CONTENTS

V. THE NATURE OF THE UNION 82

Sovereignty in the United States

The Sovereign States before the Adoption of the

Constitution

Divided Sovereignty Under the Constitution
The Supreme Court as Arbiter between the two

Sovereignties

The Constitution as the Supreme Law
Taney did not belong to the States' Rights School
The Antecedents of Taney's Theory
The Power of the National Government
Limitations on Federal Power
The Power of the States
Conclusion

VI. THE CHARLES RIVER BRIDGE CASE

AND THE POLICE POWER 106

The American Conception of Police Power
Police Power in Conflict with Chartered Privileges
The Social Importance of Strict Construction of Charter

Grants

The Conservative Viewpoint
The Significance of the Charles River Bridge Decision

VII. THE EXTENSION OF THE POLICE

POWER 121

The Liberalization of the Judicial Attitude toward

Police Power Legislation
The State's Power over Immigration
The Relation between the Police Power and the

Commerce Power

The Power to Regulate the Liquor Traffic
Taney's Definition of Police Power
Taney's Conception of the Police Power an Outgrowth

of his Doctrine of State Sovereignty

VIII. SLAVERY 141

Taney's Personal Viewpoint
The Legal Status of Slavery

IX. THE DRED SCOTT CASE 155

Taney's Opinion

The Historical Background of the Decision

The Facts in the Case

The Question of Jurisdiction

CONTENTS XI

CHAPTER PAGK

Citizenship in the United States

Slavery in the Territories

The Constitutional Status of Property in Slaves

State Laws and Slavery

The Constitution is the Recognized Expression of the

Sovereign Will

The Explanation for the Breadth of the Decision
Public Opinion on the Decision
The Function of the Court as an Interpreter of the

Sovereign Will

X. INDIVIDUAL RIGHTS 177

The Legal Nature of Individual Rights

Free Speech

Property Rights in Time of War

The Case of John Merryman

The Writ of Habeas Corpus Could be Constitutionally

Suspended Only by Congress
Military Dictatorship

The Issue of Law Against the Necessity of War
The Background of Taney's Theory
Taney's Decision was Ignored by the Executive
Public Opinion on the Decision
Conclusion

XI. THE RECONCILIATION OF LIBERTY
WITH THE SOVEREIGNTY
OF THE STATE 202

The Supremacy of the State

The Legal Nature of the State

The Supreme Law

The Importance of the Court

Democracy

Conclusion

BIBLIOGRAPHY 215

INDEX 239

ROGER B. TANEY: JACKSONIAN JURIST

BIOGRAPHY

Introduction

ROGER B. TANEY was a Federalist who became a chief among
the advisers of the rough hewn patron saint of democracy
who ruled the United States from 1829 to 1837. Later as
Chief Justice of the Supreme Court he wrote into the law
principles which may properly be regarded as the legal ex-
pression of the democracy that is called Jacksonian. In fact,
the political theory of Jacksonian democracy is more com-
pletely developed and more logically stated in Taney's writ-
ings and speeches than anywhere else.

With more vision than President Jackson, and a more
coherent political theory, Taney looked to the great ends of
government. | In the inner circle of the Jacksonjans^and out
of it, he champlc^^ w ftho ut compromise

toward the realization of the ideal that assures to ^all citizens
an equal share in the sovereignty of the state and equality of

A j y,,, , , ,, , , , ,* *, , ^.^.fc.wiB-

status before their government. He conceived of Jie law^as
a tower of refuge to which men might repair for protection
equally in times of cnsTs'ahcTof peace. The defender of con-
stitutional government, Jbte.w^s. not f afraid tJ3Ste"f Re jjowers
of the state in broad free terms because he thought^of _the^
people as sovereign, and with the-, faitLsi, the true democrat
he saw no need for them to fear themselves. \

On more than one occasion he stirred up great criticism
and aroused hostility of the most bitter sort, but with the
great end in view he went serenely on. The incidents of the
present were not as important to him as the principles which
he never lost sight of even in the midst of the storm. Be-
cause he was a man of consistence and of a stubborn courage

[3]

^ ROGER B. TANEY

that utterly disregarded vocal public opinion he has gone
down in history under a shadow. Few people know the truth
about him. To the average man, who knows anything at all
about him, he is the author of the Dred Scott decision. And
this single fact suggests a nebulous shadow of iniquity. The
great Jacksonian's contributions to democratic government
have been forgotten. That, perhaps, is a penalty of his con-
sistency and his lack of political finesse.

In order to understand how these things came to be, one
must look into the background from which Taney came and
to the surroundings in which he worked.

Taney's Early Life and Education

Roger Brooke Taney was born March 17, 1777 on a Mary-
land plantation. His father was Michael Taney, a planter
politician and an avid reader who began planning very early
a great career in law and politics for his son. His mother,
Monica Brooke Taney, was a woman of unusual charm, sym-
pathy and goodness of character. As her son, Roger, records:
"If any of the plantation-servants committed faults, . . . they
came to her to intercede for them j and she never failed to use
her influence in their behalf, nor did she ever hear of a case
of distress within her reach, that she did not endeavor to
relieve it. I remember and feel the effect of her teaching to
this hour [September, i854]. wl The kindness and con-
sideration for the feelings of others that were typical of his
dealings with his associates seem to have been the projection
of these same traits in his mother's character and show to
some extent the bond of understanding and sympathy be-
tween them.

Roger Taney's parents were Catholics, and for that reason
their education had been influenced by the discriminative

1 S. Tyler, Memoir of Roger Brooke Taney, pp. 26-27. All biographical
material not credited to specif c sources is from this volume.

BIOGRAPHY 5

English laws which had been put in force in the colony
founded by Lord Baltimore. His father had been educated
in France and although his mother came from a wealthy
family of good social standing and some prominence, since
she was a girl, she had had no formal schooling. The dis-
criminations against the education of Catholics having been
done away with by the American Revolution, it was taken
for granted that the Taney children would be educated.

When Roger was eight years old, he was sent with his
brother and sister to the nearest school, three miles away.
Their attendance was irregular, because they walked to and
from school and in bad weather had to stay at home. But
Michael Taney was determined that his children should be
educated, in spite of difficult details. Consequently, after
an elementary education obtained in country schools and
from a tutor employed by the family, Roger was ready, when
fifteen years old, to go to college. His father decided to
send him to Dickinson College at Carlisle, Pennsylvania.

The life of the young Taney at college was pleasant as
well as highly profitable. He enjoyed sports and games and
gladly took part in them, but he was at the same time a
thorough student. He always prepared his lessons well. In
addition, he liked books and read much more than was
actually required by his teachers. This reading, he tells us,
was "desultory, and some of it not wisely selected."

Outstanding among the four members of the Dickinson
faculty of Taney's time was Doctor Charles Nisbet, president
of the college. He taught ethics, logic, metaphysics, and
criticism. Some of his lectures were on economic subjects,
and included much that later came to be called sociology. 2
He was a brilliant scholar who had been persuaded to come
over from Scotland to head the college at its beginning. He
was not only a great scholar, but a devout and orthodox

3 J. H. Morgan, Dickinson College, p. no.

6 ROGER B. TANEY

Calvinist as well. Although he was a man of firm convictions
with a deep seated aversion to slipshod methods of work, he
was also a man of charming personality. Taney and other stu-
dents spent many evenings in the Nisbet home where they
were charmed and instructed by Doctor Nisbet's discussion
of a wide range of subjects. In the classroom Doctor Nisbet
gave voluminous lectures, but he also encouraged his students
to think for themselves and form opinions of their own.

Some idea of the rigor of the intellectual diet which he
prescribed for his pupils may be gathered from a letter which
he wrote to a friend in 1790. Referring to a group of stu-
dents who were studying for the ministry under his guidance
he said, "They promised to attend at least two Years, &
longer if I should find it necessary, ... I have delivered to
them already three hundred & Seventy five lectures on the
first 29 Chapters of the Westminster Confession of Faith, &
I hope they will stay with me till I get through it." 3

The old clergyman expressed his convictions with a fervor
and a frankness that were sometimes impolitic. In Scotland
he had made enemies by supporting the cause of the colonists
during the American Revolution. In America he condemned
the French Revolutionists with such ardor that he aroused
the hostility of some of their American sympathizers. He
had little faith in republican institutions and was very cynical
about the ability of the Americans to maintain a stable and
effective government. Taney and many of the other students
did not copy down such sentiments when they were expressed
in class. To them such ideas were rank heresy. In spite of
what they considered his lapse on this one subject, Doctor
Nisbet's students held him in high regard, and on many of
them his character, as well as the opinions he expressed, made
i profound impression.

It is safe to assume that Doctor Nisbet's personality left a

8 Bulletin of the New York Pu&Uc Library, I (1897), 118.

BIOGRAPHY 7

lasting influence on Taney's life. Taney was at Dickinson
during a formative period in his life, from the time he was
fifteen years old until he was eighteen. Certainly in his
public career he later revealed traits much like those o Doc-
tor Nisbet. He had strong convictions and he sometimes
expressed them with more force than tact. He was a Roman
Catholic with the stubborn integrity and idealism of a Scotch
Presbyterian.

Taney graduated from college in 1795 as valedictorian of
his class. The valedictorian at that time was elected by the
class, so the honor was as much a tribute to his popularity as
to his scholarship. After spending a winter at home he went
to Annapolis, Maryland, in the spring of 1796, to begin the
study of law.

He read law in the office of Jeremiah Townley Chase,
one of the judges of the General Court of Maryland. Judge
Chase had been a member of the Maryland convention which
ratified the federal Constitution in 1788. He had been one
of eleven members, out of the seventy-four present, who
voted against ratification on the ground that the Constitution
lessened the power, and seemed to threaten the sovereignty,
of the States. The minority had fought hard for adding a
bill of rights to the Constitution. 4 One cannot assume from
this that Judge Chase remained a radical States 3 rights man
all his life, 5 but his appreciation of the dignity of the States
and his advocacy of a bill of rights reveal something of his
political philosophy which must not be forgotten when one is
considering the influence that he would exert on a young law
student reading under his direction.

At that time Annapolis was the best place in Maryland
to study law. During the sessions of the General Court,

* J. Elliot, The Debates in the Several State Conventions on the Adoption of the
Federal Constitution, II, 547-56. J. T. Scharf, History of Maryland) II, 543, 547.

5 Samuel Chase was also one of the minority of eleven. His later intemperate
devotion to the Federalist cause is well known.

8 ROGER B. TANEY

Taney heard and saw some of the greatest lawyers of Amer-
ica. Luther Martin, Philip Barton Key, John Thompson
Mason, and Arthur Shaaf were among those who impressed
him most. As he listened to these men he was stirred by
ambition, and the hope that some day he might occupy a
position at the bar as enviable as they held. Toward this end
he worked diligently at his studies, reading as much as twelve
hours a day for weeks at a time.

Federalist Leader In Maryland

He was admitted to the bar in 1799 and, mainly because of
the request of his father, returned to his home county of
Calvert to begin the practice of law. With his father's en-
couragement he became a candidate for the State legislature,
and was elected. His work in the legislature won for him a
position of respect in his own county and in the State. He
confidently expected to be reflected, but the Federalist party,
of which he was a member by birth and environment took
the unpopular side of a question as to how presidential
electors should be chosen and he was defeated.

After this untimely interruption of his political career,
Taney decided to leave Calvert County and go to some place
where the opportunities for advancement in law practice were
greater. After giving the matter careful consideration he
decided to locate in Frederick, which next to Annapolis and
Baltimore was the best place in the State to build up a
profitable practice at that time.

In 1803, he was one of the candidates nominated for the
House of Delegates by the Federalists. The county was
predominantly Republican but he and John Hanson Thomas,
one of his fellow candidates, conducted a vigorous speaking
campaign. 6 One of their early appearances was at a Republi-
can barbecue, which they attended at the invitation of one of

6 Members of the House of Delegates were elected from Multi-member districts.

BIOGRAPHY 9

the Republican leaders. 7 When the most militant Republican
manager of the barbecue heard. of the invitation he said that
these two Federalists should be "thrown into John Swearin-
gen's mill-dam" if they came. 8 Taney and his partner went
to the barbecue in the hope that they could do a little mis-
sionary work. When the Jeffersonian who had wanted to
throw them into the mill-dam saw them coming he left in
high indignation with the explanation that "there were so
many d d Federalists there." Finally, as a result of the
commotion which their coming had caused, the two Federalist
missionaries went back to town with some of their friends
and ate dinner at a tavern. In the evening they had a chance
to make speeches, although according to the Federalist Fred-
erick-Town Herald, the Republicans made a violent clamor
until they wore themselves out. 9

Other barbecues and more clamoring followed. Charges
and counter charges were hurled back and forth. The Re-
publican Advocate called Taney an aristocrat. "Precious
representatives, indeed, would the people have in such men
as Roger B. Taney and his little man Sancho," they said. 10
At the end of this campaign of barbecues and invective the
Federalists were defeated. Taney settled down once more to
the practice of law.

In 1807, a wave of indignation swept over the United
States as a result of the "Chesapeake Affair." On the Fourth
of July a public meeting was held in Frederick, and a com-
mittee was appointed to draw up resolutions expressing the
feeling of the people. Taney was one of the members of the
committee. The committee drew up a set of resolutions con-
demning the attack of the British warship on the Chesapeake.

7 Frederick-T 'own Herald, September 17, 1803.
* Ibid., October i, 1803.

9 Ibid.) September 17, 1803.

10 Quoted in E. S. Delaplaine, "Chief Justice Roger B. Taney His Career at
the Frederick Bar," Maryland Historical Magazine, XIII (1918), 124.

10 ROGER B. TANEY

One of the resolutions was, "That we pledge to the govern-
ment, our lives and fortunes to support them in obtaining re-
dress for this unexampled insult to our national honor, and
that we will at all times prefer prompt and decisive war to
dishonorable peace." The resolutions were unanimously
adopted by the meeting. 11

Taney, in company with most of the Federalists, opposed
American entrance into war with Great Britain in 1812, but
as soon as war was declared he supported the government.
The Federalist party in Frederick County was split into two
groups on the war issue. Those who followed Taney in sup-
porting the government were called "Goodies," and he was
called "King Coody." It was during the war that Taney's
brother-in-law, Francis Scott Key, wrote "The Star Spangled
Banner." Tyler calls "The Star Spangled Banner" "the song
of Maryland Federalism." 12 But it was really the song of
only part of the Federalists, for the two factions were in wide
disagreement on the war issue, and feeling was sometimes
very bitter between them.

In 1816, Taney was elected to the Maryland Senate. By
that time the anti-war Federalists had forgiven him and ap-
proved of his selection. One of his first official acts was to
introduce a series of resolutions condemning the congressional
caucuses which nominated candidates for president. 13 Dur-
ing his five years as State senator he took a creditable part in
the business of the senate. His vote on some questions is
interesting, and perhaps revealing. In 1818, he voted against
a bill to tax "all banks or branches thereof in the state of
Maryland, not chartered by the legislature." 14 This act,
aimed at the branch of the Bank of the United States, was
passed, and its attempted enforcement led to the famous case

^Frederick-Town Herald, July II, 1807.

"Tyler, op, cit., p. 108.

18 Votes and Proceedings of the Senate of Maryland, January 2, 1817, p. 19.

" Ibid., February n, 1818, p. 40.

BIOGRAPHY 1 1

of McCulloch v. Maryland. 15 In 1820, Taney was one of
four out of fourteen senators who voted in favor of a bill "to
prohibit the pernicious practice of cock-fighting and gaming
within this state." 16 In the next session he voted against the
repeal of the law prohibiting the importation of slaves into
Maryland. 17 He was again in the minority. Taney's stand-
ing as a lawyer was recognized by his appointment to numer-
ous committees dealing with legal matters and many of the
statutes concerning courts of law, of equity, and the orphans'
courts, which were passed during this period, were drawn up
by him. 18

In 1823, Taney moved to Baltimore. Not long after-
ward he became attorney for the Union Bank of Maryland,
and also one of its directors. 19 It is possible that his later
hostility to the Bank of the United States was partly a result
of his connection with this state bank. The president of the
Union Bank, Thomas Ellicott, was a man of extraordinary
intelligence and vigor. He and Taney were often in consulta-
tion. Ellicott's views on the Bank of the United States
were known to be similar to those later expressed by Taney
when he took a prominent part in the war on the Bank. 20 In
1826, Taney was counsel for Solomon Etting, senior director
of the Union Bank, in a suit against the Bank of the United
States. The chicanery of the officials of the Bank of the
United States in the incidents surrounding this case may also
have left a lasting impression on him, 21

' By the time he moved to Baltimore Taney had become
recognized as one of Maryland's greatest lawyers. William

^4 Wheaton, 316.

16 Votes and Proceedings of the Senate of Maryland, February 2, 1820, pp.
49> 50.

17 Ibid., January 10, 1821, p. 19.

18 Tyler, op. cit., p. 120.

19 B. C. Steiner, Life of Roger Brooke Taney, p. 83.

20 J. E. Semmes, John H. B* Latrobe and His Times, pp. 399-400.
31 Steiner, op. cit., pp. 92, 93.

12 ROGER B. TANEY

Pinkney had died 5 Luther Martin was a wreck. It was an
opportune time for Taney to take the leadership o the bar.
In 1825, he was admitted to practice before the Supreme
Court of the United States. From then on he appeared as
counsel in cases before the Supreme Court at not infrequent
intervals, often associated with other leading lawyers of the
time. In 1826, Justice Story, writing to a friend, referred to
him as "a man of fine talents." 22 In 1827, Taney's standing
as a lawyer in his own State was recognized when a governor
of the opposite political party appointed him attorney general
upon the unanimous recommendation of the Baltimore bar.

As A Leader of Jacks oman Democracy
About the time he moved from Frederick to Baltimore Taney
changed his politics. The Federalist party had been in its
death throes for a good many years. The bitter opposition
of its leaders to the War of 1812 sealed its doom. Taney,
and many other Maryland Federalists, had had little patience
with the conduct of the bitter-enders. When the party ex-
pired, some of its erstwhile members became National Repub-
licans and later Whigs, while others joined the ranks of
those who followed Andrew Jackson. Taney was in the latter
group. In 1825, when the election of a president was thrown
into the House of Representatives, John Quincy Adams re-
cords in his diary that Representative Warfield reported that
he had been urged by Charles Carroll of Carrollton and Mr.
Taney of Baltimore to vote for Jackson. Carroll and Taney
had argued that if Adams was elected his administration
"would be conducted on the principle of proscribing the
federal party." 23

Federalists had been attracted to the support of Jackson
in the campaign of 1824 by the publication of some of his

22 W. W. Story, Life and Letters of Joseph Story, I, 493.

23 February 7, 1825, Memoirs of John Quincy Adams, edited by C. F. Adams,
VI, 499-

BIOGRAPHY 13

correspondence with Monroe in :8i6. 24 Jackson had then
been trying to get Monroe to appoint a former Federalist,
Colonel William H. Drayton, Secretary of War. Before the
war Colonel Drayton had been a Federalist, but as soon as
war was declared he had sprung to the defense of his country.
"Such a man as this," wrote Jackson, "it matters not what he
is called will always act like a true American/ 725 Jackson also
advised the President to avoid party and party feeling in
selecting his cabinet members. "Now is the time to extermi-
nate the monster called party spirit," he said. 26 A few
months later he wrote again, and after strongly condemning
the Hartford Convention brand of Federalists, said, "But I
am of opinion that there are men called Federalists that are
honest, virtuous, and really attached to our government, and,
although they differ in many respects and opinions with the
Republicans, still they will risk everything in its defense." 27
Such sentiments could not fail to appeal to Federalists, now
left without a party and not knowing which way to turn.
Some, among them Taney, were drawn to support Jackson.
Some of these later found Jacksonian company and Jacksonian
^policies uncongenial and became Whigs. 28 Taney however,
finding himself in harmony with the fundamental principles
of Jacksonian Democracy, remained a Democrat.

In 1831, after the disrupting influence of the grim Cal-
-4ioun and the beautiful Peggy O'Neil had broken up Jack-
\ son's first cabinet, Taney was appointed Attorney General of
"the United States. As Attorney General he became one of
'"Jackson's most trusted advisers, his influence being of most
significance in connection with Jackson's policy toward the
'Bank of the United States. Later, as Secretary of the Treas*-
\iry he was closer to the President than any other member of

^ J. Parton, Life of Andrew Jacks on, II, p. 356.

25 Ibid., p. 358. *lbid., pp. 360-61.

27 Ibid., p. 367. ^Charles Carroll was one of these.

14 ROGER B. TANEY

his cabinet. Perhaps the reason was, as one writer puts it,
he was "the most like Jackson in the vigor of his blows." 29
A hostile Senate rejected Taney's appointment as Secre-
tary of the Treasury, but Jackson never forgot what he had
done. In 1836, when Justice Duvall resigned his seat on the
Supreme Court, Taney was immediately nominated to take
his place. The Senate was still controlled by men who had
come to hate him in the struggle over the rechartering of the
Bank. Chief Justice Marshall, although he bitterly disliked
Jackson, had a high regard for Taney's legal talents, and
privately endeavored to get his appointment confirmed. 30
The Senate, however, refused to confirm the appointment.

Chief Justice of the Supreme Court

Less than a year later Chief Justice Marshall died and Jack-
son nominated Taney to succeed him. The political com-
plexion of the Senate had changed since Taney's previous
rejection, and this time his appointment was confirmed,
although his enemies still strenuously opposed him. Upon
being informed of the Senate's confirmation of his appoint-
ment, Taney wrote Jackson a letter of appreciation, in which
he said:

I feel that the first letter I write after the receipt of this
intelligence should be addressed to you, to express the deep sense
I shall ever retain of the constant kindness with which you have
supported me, until you have finally placed me in the high station
which I now fill, and which is the only one under the Government
that I ever wished to attain. There are indeed circumstances con-
nected with my appointment, which render it even more gratifying
than it would have been in ordinary times. In the first place I
owe this honor to you to whom I had rather owe it than to any
other man in the world, and I esteem it higher because it is a token
of your confidence in me. In the second place I have been con-

20 Claude Bowers, The Party Battles of the Jackson Period, p. 140.
30 Tyler, op. tit., p. 240.

BIOGRAPHY 15

firmed by the strength of my own friends, and go into the office
not by the leave, but in spite of the opposition of the men who
have so long and so perseveringly sought to destroy me, and I am
glad to feel that I do not owe my confirmation to any forbearance
on their part. . . . And Jt is a still further gratification, to see,
that if providence spares our lives, it will be the lot of one of the
rejected of the panic Senate, as the highest judicial officer of the
country to administer in your presence and in the view of the
whole nation, the oath of office to another rejected of the same
Senate, when he enters into the first office in the world, and to
which it is now obvious that an enlightened and virtuous people
are determined to elect him. The Spectacle will be a lesson;
which neither the people nor politicians should ever forget. 31

Henry Clay had been one of the leaders in the Senate
against the confirmation of Taney. After he had observed
Taney's work as Chief Justice he changed his opinion of him
and sought an interview in order that he might tell Taney
of his change of heart. According to Reverdy Johnson he
said to him,

Mr. Chief Justice, you know that in my place in the Senate,
before your nomination to the office which you now fill was sub-
mitted to that body, as well as during its considerations, I said
many harsh things of you. . . . But I now know you better. I
have carefully and anxiously watched your course on the bench,
and have sometime since become satisfied that I had done you
injustice. I am now convinced that a better appointment could
not have been made, and that the ermine, so long worn and
honored by Marshall, has fallen on a successor . . . every way
his equal, and I have sought this interview so to say to you. 32

Taney came to the Supreme Court at a time when there
seemed to be a need for a liberalization of the law. Marshall
had been well suited for the task of welding a federation of

81 Correspondence of Andrew Jackson, edited by J. S. Bassett, V, 390.

82 Reverdy Johnson, at a general meeting of the bar of Baltimore, October 14,
1864. Proceedings of the Bench and Bar of Baltimore y p. 18.

1 6 ROGER B. TANEY

thirteen suspicious states into a strong national union. Taney
succeeded him when the nation was in the midst of a dem-
ocratic revolution in politics, and a revolution in industry of
far reaching importance. In his zeal to strengthen the
Union, Marshall had sometimes given scant consideration to
the power and position of the States. The industrial revolu-
tion made necessary new laws regulating industry for the
benefit of the whole people, and the democratizing of polit-
ical institutions put the common people in a position where
they could effectively demand laws protecting their interests.
The decisions of the State courts began to show a liberal
trend in the twenties. It was with the accession of Taney and
other appointees of Jackson and Van Buren to the Supreme
Court that it too developed a liberal trend in keeping with
the spirit and need of the time.

Taney's appointment, coming when it did, was a partic-
ularly fortunate one for the development of American law.
He was a great technical lawyer with a better legal training
than any of his predecessors. 33 And happily he combined
with his knowledge of the law a democratic philosophy and
human sympathy which gave promise that his decisions would
be made with a view to economic and social conditions, and
not entirely from a coldly legalistic point of view. His asso-
ciation with President Jackson and his conspicuous part in
the struggle with the Bank had demonstrated, and perhaps
strengthened, his sympathy for the common people and his
mistrust of powerful corporations. His democratic political
views are revealed in a letter which he wrote to Jackson in
1838, part of which is here quoted:

In large commercial cities, the money power is, I fear irresist-
ible. It is not by open corruption that it always, or even most gen-

33 F. R. Jones, "Roger Brooke Taney," The Green Bag, XIV (1902), 2j H. L.
Carson, The History of the Supreme Court of the United States, I, 2915 E.
Countryman, The Supreme Court of the United States, p. 51.

BIOGRAPHY 17

erally operates. But when men, who have families to support who
depend for bread on their exertions, are aware that on the one
side they will be employed and enriched by those who have the
power to distribute wealth, and that, if they take the other, they
must struggle with many difficulties that can be thrown in their
way, they are very apt to persuade themselves that that path is
the best one in which they meet fewest difficulties and most
favour, and surrender the lasting blessings of freedom and manly
independence for temporary pecuniary advantages. They forget
the grinding oppression that awaits them from the power they are
contributing to establish, as soon as it is firmly seated in the saddle
and no longer needs their support. . . . But one thing is clear,
that if the effort to render the laboring classes of this country
servile and corrupt and to destroy their independent spirit and self-
respect shall be successful, that class of society who are striving to
produce it, will be the first and most terrible victims of their own
policy. The lessons of history upon this point are too plain to
mislead us. 34

Taney was Chief Justice o the Supreme Court from 1836
until 1864. During that period he wrote something like
three hundred opinions, only a very few of which were dis-
senting opinions. His decisions when he spoke for the Court,
and his few dissenting opinions as well, have with few excep-
tions, been finally received as correct statements of the law. 35
Only one of his opinions, that Jn the Dred Scott case, has
been, looked upon with permanent hostility. 36 Among his
most important decisions were the following: Charles River
Bridge v. Warren Bridge f 7 in which he construed a corpora-
tion's charter strictly, in order that the interest of the public
might be protected ; License Cases, 38 in which he gave a
liberal interpretation to the police power of the States;

8 * Quoted in Charles Warren, The Supreme Court in. United, States History, II,
36-37. By permission of Little, Brown & Company, publishers.

85 G. W. Blddle, In Constitutional History of the United States as Seen in the
Development of American Law, p. 125* 3 Ibid. y p. 198.

87 1 1 Peters, 420. "* 5 Howard, 554.

1 8 ROGER B. TANEY

Genesee Chiej v. Fitzhugh^ which extended the admiralty
power of the national government 5 the Dred Scott decision/
which denied the possibility of a Negro becoming a citizen
of the United States, and declared that Congress had no
power to abolish slavery in the Territories 5 Ableman v.
Booth*' 1 which strongly upheld the power of the national
government and its courts and their right to be free from State
interference ; and Ex parte Merry man^ in which Taney
held that the President has no power to suspend the writ of
habeas corpus.

Of the principles laid down in these decisions more will
be said in future chapters. It may be noticed in passing that
the decisions in the Charles River Bridge Case, the License
Cases, and Ex $arte Merryman y are liberal decisions beneficial
to human rights. The decisions in the Genesee Chief case
and Ableman f o. Booth strengthen the power of the national
government. The Dred Scott decision, coming at a time
when feeling on the subject of slavery was waxing very hot,
increased the bitterness of the Abolitionists and pulled down
on Taney's head maledictions from which his reputation has
not yet recovered.

Opinions of the Critics

Justice Benjamin R. Curtis, one of Taney 's associates on the
Supreme Court, has left a vivid description of Taney as Chief
Justice. Justice Curtis, it will be remembered, did not always
agree with Taney 3 notable among his dissents was that in the
Dred Scott case. In an address to the Boston Bar in October,
1864., Justice Curtis said of Taney:

In consultation with his brethren, he could, and habitually did,
state the facts of a voluminous and complicated case, with every
important detail of names and dates, with extraordinary accuracy,

30 12 Howard, 44,3. * 19 Howard, 393.

41 21 Howard, 506. ** Campbell's Reports, 246-70.

BIOGRAPHY 19

and, I may add, with extraordinary clearness and skill. And his
recollection of principles of law and of the decisions of the court
over which he presided was as ready as his memory of facts. . . .
His mind was thoroughly imbued with the rules of the common
law and of equity law; and . . . when I first knew him he was
master of all that peculiar jurisprudence which it is the special
province of the courts of the United States to administer and
apply. His skill in applying it was of the highest order. His power
of subtle analysis exceeded that of any man I ever knew, a
power not without its dangers to a judge as well as to a lawyer;
but in his case it was balanced and checked by excellent common
sense and by great experience in practical business, both public and
private. . . . For it is certainly true . . . that the surpassing
ability of the Chief Justice, and all his great qualities of character
and mind, were more fully and constantly exhibited in the con-
sultation-room . . . than the public knew, or can ever justly
appreciate. There, his dignity, his love of order, his gentleness,
his caution, his accuracy, his discrimination, were of incalculable
importance. The real intrinsic character of the tribunal was
greatly influenced by them, and always for the better. 43

Taney's manner and bearing and the effectiveness of his
language impressed all those who observed him in the court-
room. John H. B. Latrobe, who was a young lawyer in
Baltimore when Taney lived there, later said of him that he
"appealed to court or jury in language so simple, yet so clear,
that those who listened almost fancied they could do as well
themselves, so great was this grand lawyer's faculty o state-
ment and argument." 44

When Taney died, October 12, 1864, many Republican
papers, their viewpoint colored by the passions of war, re-
membered the Dred Scott and Merryman decisions, and
seized the occasion to comment on his career with rancorous

43 A Memoir of Benjamin Robbins Curtis t II, 338-41.

** "Reminiscences of Baltimore," read before the Maryland Historical Society
in 1880, Maryland Historical Magazine, I (1906), 118.

2O ROGER B. TANEY

expressions that were as inappropriate as they were unjusti-
fied. 45 However, there were some strong Republican papers,
not so blinded by emotion, that acknowledged his greatness. 46
The newsapers were not the only mediums of comment on
the dead Chief Justice. The Atlantic Monthly 4 " 1 devoted an
article to him, which after calling him a "judicial Calhoun"
went on to say, "He denied the settled truths of science. He
slandered the memory of the founders of the government and
framers of the Declaration." One of his statements in the
Dred Scott opinion was referred to as a monstrous "combina-
tion of ignorance, injustice, falsehood and impiety."

Someone else who modestly preferred to remain anony-
mous wrote a pamphlet called The Unjust Judge. In regard
to Taney's decisions it said, "A long series of opinions, too
trite even to be quoted and too dull to be read, which would
not confer distinction upon a judge of the most inferior
judicatory in the land, and the Dred Scott decision, which
would disgrace any man or jurist in Christendom, are an all-
sufficient justification of the minority of the Senate" (who
voted against his confirmation). 48 Summing up its judgment
of him it said, "As a Jurist, or, more properly speaking, as a
Judge, in which character he will be most remembered, he
was, next to Pontius Pilate, perhaps the worst that ever
occupied the seat of judgment." 49

Time and the ultimate leaven of common sense work
many changes in the opinions of men. When Chief Justice
Hughes spoke at the unveiling of a monument to Chief
Justice Taney in Frederick, Maryland in I93I 50 and referred
to Taney's career as "one of the most distinguished careers in

45 See Charles Warren, of. cit., II, 389.
48 Ibid., p. 391.

47 XV (1865), 151-61.

48 The Unjust Judge, p. 7.

49 Ibid., p. 67.

The United States Daily 3 September 28, 1931.

BIOGRAPHY 21

American annals" no one objected. There are few students
of history and the law who would now disagree with him.
The distinguished jurists of Taney's own age passed on him
the same verdict that Hughes rendered in I93I. 51 Reverdy
Johnson spoke with little exaggeration when he said, "And
the calm judgment of posterity, uncorrupted or unaffected by
partisan passion, will ratify the conclusion of the Bar of the
Union that a purer and abler Judge never lived than Roger
B. Taney." 52

51 Tyler, op. cit. } pp. 486-516.
**lbid., p. 498.

II

THE SOVEREIGNTY OF THE
CORPORATE PEOPLE

Introduction

WE SHALL see as we develop Taney's political theory that,
although he was predominantly English in his attitude toward
the law, his conception of the limitless power of the state 1 as
a corporate political body is at some points strikingly similar
to that of Rousseau. This belief in the sovereign power of
the state is perhaps the outstanding feature of this theory. It
will be noticed in his attitude toward groups within the state $
in his discussion of the status of individuals, whether aliens,
citizens, or slaves j in his development of the police power 5
and in the limits that he sets to the power of government
officials.

As a thorough-going Jacksonian democrat Taney believed
also in individual liberty. It is not always an easy task to
reconcile authority with freedom. Rousseau tried to do it,
but his reasoning has failed to convince all of his readers. 2
However, it was becoming increasingly clear in Taney's time
that in a complicated social world liberty under the law
brings the largest amount of freedom to the greatest number
of people.

Although it is not unreasonable to assume, because of his
excellent educational background and intellectual interests,
that Taney was acquainted with many of the classics of the
literature of political science, it would be a mistake to place

1 The term, state, is used here in its general sense and not .as meaning- a State
of the United States. When used to designate a State of the United States the
word will be capitalized throughout this study.

2 See F. Pollock, An Introduction to the History of the Science of Politics, pp.
79-815 also W. A. Dunning, A History of Political Theories from 'Rousseau to
Spencer, p. 19.

SOVEREIGNTY OF THE CORPORATE PEOPLE 23

too much credit for his political theory on the books that he
read. Men of affairs do not get their political or economic
philosophy simply by reading books. While there may be
found in Taney's theory resemblances to Rousseau and other
philosophers, it is possible in most such instances to find an
American background which goes far to explain his views on
the point at issue. Consequently, we must conclude that his
environment and the play of the social and economic forces
of his time, probably had as much to do with the develop-
ment of his fundamental ideas as did any of the books that
he read.

Early American Political Theory

The political theory of the American Revolutionary period
was essentially that of John Locke. Briefly, Locke held that
men have certain natural rights, chief among which are those
of life, liberty and property, that government results from
a compact between the individuals who compose the state, and
that the state cannot take away the natural rights of men.
This was the doctrine predominant in America during the
period of the Revolution. The parallel with Locke's ideas is
especially noticeable in the Declaration of Independence, 3 but
it may also be found in a number of the State constitutions of
the period. 4 The acceptance of Locke's ideas at that time
was quite natural, since the theory developed to justify the
English Revolution of 1688 could be used as effectively
to justify the American Revolution of 1775.

When the Constitution was framed some years after the
close of the American Revolution, the radicals were no longer

3 For a discussion of the connection between Locke's ideas and the Declaration
of Independence see Carl Becker, The Declaration of Independence, Chap. 2.

* Notably in the New Hampshire Bill of Rights (1792)5 the Massachusetts
Constitution, Pt. i, article i (1780)5 the Maryland Declaration of Rights (1776).
Perley Poore, The Federal and State Constitutions } pt. 2, p. 12945 pt. i, pp. 957,
817-820.

24 , ROGER B. TANEY

in control of affairs, but the theories o the political contract
and of natural rights were still widely accepted. Federalist
judges who had been leaders during the period of the Revolu-
tion and doubtless influenced by the current thought of the
time, used the doctrine of natural rights to protect the rights
of private property. In 1798 Justice Samuel Chase said:
I cannot subscribe to the omnipotence of a state legislature, or that
it is absolute and without control, although its authority should not
be expressly restrained by the constitution, or fundamental law of
the state. . . . An act of the legislature contrary to the first great
principles of the social compact, cannot be considered a rightful
exercise of legislative authority. ... A few instances will suffice
to explain what I mean. A law that punished a citizen ... for
an act, which, when done was in violation of no existing law; a
law that destroys, or impairs the lawful private contracts of citizens
... or a law that takes property from A and gives it to B. It is
against all reason and justice for a people to intrust a legislature
with such powers; and, therefore, it cannot be presumed that they
have done it. 5

Chief Justice Marshall said in 1810:

It may be doubted whether the nature of society and govern-
ment does not prescribe some limits to the legislative power; and
if any be prescribed, where are they to be found, if the property
of an individual, fairly and honestly acquired, may be seized with-
out compensation. 6

The Federalists, who had been horrified by the disregard
for private property rights during the Confederation period,

* Caldet v. Bull, 3 Dallas, 388 (1798). Compare with Locke, "Thirdly, the
supreme power cannot take from any man any part of his property without his own
consent. For the preservation of property being the end of government, and that
for which men enter into society, it necessarily supposes and requires that the
people should have property, without which they must be supposed to lose that by
entering into society which was the end for which they entered into it; too gross
an absurdity for any man to own." Of Civil Government^ Book 2, Sec. 138, p.
187.

6 Fletcher v. Peck, 6 Cranch, 135 (1810). See also Ogden v. Saunders, 12
Wheaton, 346 (1827).

SOVEREIGNTY OF THE CORPORATE PEOPLE 25

were anxious for the protection of these rights under the new
government. With a slight shift in emphasis Locke could
serve as their patron saint as well as that of the Jeffersonians,
for he had said that "The great and chief end ... of men
uniting into commonwealths ... is the preservation of their
property 5 to which in the state of nature there are many
things wanting." 7 To the Federalists property was "as sacred
as the laws of God/ 78 and during the period when they con-
trolled the Supreme Court it was used as an agency for limit-
ing State action which seemed to threaten rights of private
property. 9

The Theory of Jacksoman Democracy

When Roger B. Taney was appointed to the Supreme Court
in 1836 the country was in the midst of a democratic revolu-
tion which found national expression in Jacksonian Democ-
racy. The suffrage had been widely extended by the States,
and property qualifications for officeholding had been re-
moved. As a result the laborers of the East were able to
make their influence felt more forcefully in political affairs,
In the West new States were being admitted, and the fron-
tiersmen, who were both democratic and nationalistic, were
exerting an important influence on national affairs.

In the meantime social and industrial developments were
raising problems which the government could not ignore.
Lines of transportation had been developed to meet the needs
of the expanding country. National and State governments

7 Of Civil Government, Book 2, Sec. 124, p. 180.

8 The Works of John Adams, edited by C. F. Adams, VI, 9.

8 E. S. Corwln says, "The leading doctrine of Constitutional Law during the
first generation of our national history was the doctrine of 'vested rights', under
warrant of which the courts treated any legislative enactment unduly infringing
upon property rights without making compensation to the owners, as utterly
beyond the purview of legislative power, even though not specifically inhibited by
the letter of the written constitution." National Supremacy, p. 113. By permis-
sion of Henry Holt and Company, publishers.

26 ROGER B. TANEY

were spending large sums on roads and canals. Railroads
and steamboats were rapidly replacing stage coaches and
flatboats. Transportation companies were seeking special
privileges and profitable monopolies. New inventions were
revolutionizing methods of production. Production in large
corporation-owned factories where there was no direct contact
between owners and workers led to many evils. The labor
of women and children, long hours and low wages, bad living
conditions these were some of the evils which had appeared.
Some of these difficulties were complicated and intensified by
the increasing flow of immigrants. Out of it all was growing
a strong labor movement, and since the workers had got the
right to vote they began to make themselves felt politically.
An increasing amount of social legislation by the States re-
flected the democratic trend in politics.

Under such conditions an individualistic philosophy of
natural rights was no longer suitable. The government was
being called on to regulate more and more the business and
social affairs of men which it had previously left alone. Indi-
vidualism no longer meant freedom. It seemed rather to
provide an opportunity for the strong to oppress the weak.
The common people had the vote and they moved away from
such a philosophy toward one of increasing social control. In
the sense that the conception of the state as rather strictly
limited by natural law was giving way to a conception of a
state with power to do anything for the social welfare, the
political theorist may express the change that was taking place
in the dominant political philosophy of the country by saying
that Locke was giving way to Rousseau. The change began
to be reflected in the State courts in the 1820*8. It is notice-
able in the decisions of the Supreme Court after Taney be-
came Chief Justice. The Federalist controlled Court had
limited the social legislation of the State governments, under

SOVEREIGNTY OF THE CORPORATE PEOPLE 27

the guise of protecting the constitutional grants of power to
the national government. Taney's Court allowed more free-
dom for social legislation. 10

Jacksonian Democracy produced no great political the-
orists. Its leaders were men of action rather than of words.
Among them Taney was one of the most influential and also
perhaps the best prepared by training and intellectual back-
ground for the expression of the thought of the period. He
was himself primarily a man of action rather than a theorist,
but in his opinions as Chief Justice and in his previous polit-
ical expressions may be found what is probably the best state-
ment obtainable of the political theory of the new democracy.
In his exposition of the law is clearly discernible the swing
toward a strong state with power to legislate over the whole
range of human interests where the social welfare seems at
stake. He finds individual freedom best protected by the
sovereigryDeoplej^ capacity compose the

""state! When individual rights are threatened by the govern-
ment their will, not the will of government officials, is the
law.

Individual Rights are Not Natural Rights
Taney's opinion in the Dred Scott case 11 and the supple-
ment 12 which jhe.wrote to it show that he thought of the state
as being formed by a social compact, but there is no evidence
that he believed in natural rights, a belief wHch had accom-
panied the contract theory in the minds of earlier American
and English political thinkers. Whenever he refers to indi-
dividual rights they are rights established by law. In his

10 This subject will be discussed in more detail in the chapters on the police
power. See also E. S. Corwin, op. cit., pp. 114-19.

11 19 Howard, 393 (1856).

12 As a result of the criticism of his opinion in the Dred Scott case Taney
wrote a lengthy supplement giving- further proof in support of his opinion. It is
published in Tyler, op. cit., pp. 578-608.

28 ROGER B. TANEY

supplement to the Dred Scott opinion, speaking of the Amer-
ican Revolution he said, "It was undertaken to maintain
ancient and established rights which had been invaded by the
British Government." 13 Although he was in the midst of a
discussion of the Declaration of Independence he did not
refer to those "ancient and established rights" as natural
rights, rather he said, "The colonists claimed the rights of
Englishmen, as secured by magna carta and the principles
upon which the British Government was founded. They did
nothing more." 14 Even in cases where he seemed to sum-
mon every resource of logic and evidence at his command, as
he did in the Dred Scott case in defense of property rights
and in the Merryman case 15 in defense of individual freedom,
Taney did not in a single instance appeal to natural rights or
the law of nature.

In no instance does Taney refer to a state of nature. His
viewpoint is essentially that of a practical lawyer and states-
man rather than of a theorist. The American States and the
American nation, as he saw it, had been formed by compacts
among the people who composed them, but they had not
emerged fresh from a state of nature. They had back of
them a long tradition of English political institutions. Taney
was well grounded in the common law, and through this law
America is connected with the evolutionary continuity of Eng-
lish political development which seems to have neither be-
ginning nor end. As a lawyer and jurist he had no need for
a state of nature in his theory.

The Social Compact and Popular Sovereignty

The Dred Scott opinion and its supplement and a few brief
remarks in other opinions give clues to Taney's belief in the
compact theory. There is not in any of his opinions anything

33 Ibid., p. 600. " Ibid.

15 Ex <parte Merryman, Campbell's Reports, 254 (1861).

SOVEREIGNTY OF THE CORPORATE PEOPLE 29

like a full discussion o his views on the subject. He places
much more emphasis on the idea of popular, sovereignty than
* lie does on the compact theory, although he associates the two
together so closely that it is almost impossible to discuss his
conception of one without also discussing the other.

In contrasting the American political system with the
English, Taney pictures the American system as one of pop-
ular sovereignty and the English system as one where sov-
ereignty resides in the king, and he points out that the change
in the location of sovereignty in America was brought about
by the formation of a new political compact. In this connec-
tion he says:

In England the sovereignty resides exclusively in the person
or individual who is king. All Englishmen are his subjects. And
the highest peer in the realm ... has no share in the sov-
ereignty. Their statutes profess to be passed by the King, by and
with the advice and consent of the Parliament, treating the Par-
liament as advisers and not as the makers of the law. . . . All
offences are charged in indictments to be committed "against his
peace and dignity," and the crime o treason can be committed
against the King only, and not against the Parliament or people
of England.

.But, according to our institutions, the sovereignty does not
reside in any one individual, but in the whole people, who form
the political Bo3y called the Stat^JE very t one who is a member of
thisTsocial compact is a citizen, and a component part of the

., -- ** * -- "-" * " "~ " " "* ""'"~ . k . , J , , j ,, M , Sr ,.,, f < ' ~**^* t| "* "*"" "" '"'"*' -"*"-" '*" '

6 Supplement to the Dred Scott Opinion, Tyler, op. cit. } p. 605. This state-
ment is similar to Thomas Paine's assertion, "Sovereignty, as a matter of right,
appertains to the nation only, and not to any individual; and a nation has at all
times an inherent indefeasible right to abolish any form of Government it finds
inconvenient, and establish such as accords with its interest, disposition, and hap-
piness. . . . Every citizen is a member of the Sovereignty, and, as such, can
acknowledge no personal subjection; and his obedience can be only to the laws."
Rights of Man, p. 66. It will be noticed however that Paine finds sovereignty in
the people of the state "as a matter of right," and he is laying down a general
rule, while Taney, speaking of the United States, declares that sovereignty resides
in the people "according to our institutions."

3O ROGER B. TANEY

Taney thought of the change which occurred as a result
of the Revolution as being of fundamental importance. It
was not comparable to a change in dynasty, for the political
organization in America had undergone a radical change.
New states had been formed. "Those who displaced the sov-
ereignty of the English monarch, and associated themselves
in a new political body, retaining the sovereignty in their own
hands, had the power and the right to determine who should,
and who should not, be admitted as members of this asso-
ciation, and share equally with themselves the sovereignty
they had established in their own hands." 17

Chief Justice Jay had announced a similar doctrine in his
opinion in Chisholm <v. Georgia^ in 1793. Referring to the
English system he said:

That system considers the prince as the sovereign, and the people
as his subjects; it regards his person as the object of allegiance,
and excludes the idea of his being on an equal footing with a sub-
ject, either in a court of justice or elsewhere. ... No such ideas
obtain here; at the revolution the sovereignty devolved on the
people; and they are truly the sovereigns of the country, but they
are sovereigns without subjects, unless the African slaves among
us may be so called, and have none to govern but themselves; the
citizens of America are equal as fellow-citizens, and as joint-
tenants in the sovereignty. 19

It is interesting to notice the stress which both Taney and
Jay place on the change in the location of sovereignty brought
about by the Revolution. They must have known that the
idea of a sovereign king in England was only a legal fiction.

17 Supplement to the Dred Scott Opinion, in Tyler, op. cit., p. 606.

18 2 Dallas, 419.

19 Ibid., 471-72. Compare with Mr. Justice Baldwin in Rhode Island v.
Massachusetts y 12 Peters, 720 (1838). "Those states, in their highest sovereign
capacity, in the convention of the people thereof? on whom, by the revolution,
the prerogative of the crown, and the transcendent power of parliament devolved,
in a plenitude unimpaired by any act, and controllable by no authority . . . adopted
the constitution. . . ."

SOVEREIGNTY OF THE CORPORATE PEOPLE 31

Taney perhaps gives evidence of this realization when he says,
"Their statutes profess to be passed by the King. . . ." The
fact that he defined the location of sovereignty in England
as a legal fiction might raise a question as to whether or not
he thought of popular sovereignty in the United States as
being also a legal fiction. His utterances in the struggle over
the recharter of the Bank and on other occasions, which will
be discussed in later chapters, give evidence that he believed
in popular sovereignty as a vital reality, something much
more than a fiction.

It is noticeable that Taney conceives of the States formed
at the time of the Revolution as new political associations.
He thought of the United States as being another political
body created by the Constitution, and he applied the same
principles to this national association that he applied to the
States. He says, "The words, 'people of the United States'
and 'citizens' are synonymous terms, and mean the same
thing. They both describe the political body who, according
to our republican institutions, form the sovereignty, and who
hold the power and conduct the government through their
representatives. They are what we familiarly call the 'sov-
ereign people, 3 and every citizen is one of this people, and a
constituent member of this sovereignty." 20

Thus far we have considered Taney's theory of the nature
of the political associations in the United States almost
wholly as it is revealed in his opinion in the Dred Scott case
and its supplement. He does not refer to the States of the
Union as being formed by political compacts in any of his
other opinions. He does, however, refer to the national
Constitution as being a compact between the people of the
several States. In Ableman v. Booth, after declaring that the
Constitution was formed by a voluntary act of the people of
the several States he asserts that it is the duty of a "sovereign

20 Dred Scott v. Sandford, 19 Howard, 404 (1856).

32 ROGER B. TANEY

state" to observe "the compact into which it voluntarily
entered when it became a State of this Union." 21 In Ken-
tucky v. Dennison he refers to the interstate rendition clause
as a "compact engrafted in the Constitution." 22

His expressions on popular sovereignty are clearer and
more frequent. In his dissenting opinion in Luther v. Bor-
den he said, "No one., we believe, has ever doubted the
proposition, that, according to the institutions of this country,
the sovereignty in every State resides in the people of the
State, and that they may alter and change their form of
government at their own pleasure." 23 In Fleming et al. v.
Page he said, "For in this country the sovereignty of the
United States resides in the people of the several States, and
they act through their representatives according to the delega-
tion and distribution of powers contained in the Constitu-

21 21 Howard, .$25 (1858).

^24 Howard, 103 (1860). These statements show that Taney thought of
the Federal Constitution as a compact between the States as political entities and
binding on them as such. His assertion in Kennett et al. v. Chambers, 14 Howard,
50, that a citizen is "personally pledged" by a treaty of the government because it
"is made by the department of government upon which he himself has agreed to
confer the power. It is his own personal compact as a portion of the sovereignty
m whose behalf it is made" carries the suggestion that the Constitution is binding
on individual citizens because made by them.

These Ideas are suggestive of St. George Tucker's theory that the Constitution
was a compact between the States as political entitles, and also between the indi-
vidual citizens of the States. Discussing the Constitution he said, "Here then are
all the features of an original compact, not only between the body politic of each
state, but also between the people of those states in their highest sovereign capacity."
And at another point he said of the Constitution, "It is a compact by which the
several states and the people thereof, respectively, have bound themselves to each
other, and to the federal government." Blacks t one's Commentaries, Vol. I,
Appendix, note D, pp. 151, 169.

St. George Tucker, professor of law at the College of William and Mary,
published an edition of Blackstone's Commentaries- in 1803 which, in addition to
the text of Blackstone, contained "the first legal commentaries on the Federal
Constitution which appeared in the United States." It had a wide circulation.
Charles Warren, A History of the American Bar, p. 336.

Taney's theory is similar to Tucker's at a number of points, but he does not
agree with him in all particulars.

23 7 Howard, 47 (1848).

SOVEREIGNTY OF THE CORPORATE PEOPLE 33

tion." 24 In another decision he pointed out that the status of
a county was radically different from that of a State, and
said of counties, "They form together one political body in
which the sovereignty resides." 25

From the discussion thus far it is evident that Taney
thought of the state where popular government prevails as
being the result of a compact between the citizens who com-
pose it. In the United States the compact took the form of a
constitution which defined the powers of government. In a
later chapter dealing with the Merryman case we shall see
that he thought of a valid expression of the sovereign will as
being a constitutional expression. It was not simply the ap-
parent will of the majority of the citizens that was sovereign,
but the will of the corporate body as expressed according to
the provisions of the constitutional compact. 26

The Theoretical Background for Taney* s Ideas

Taney's conception of the composition and power of the state
seems to be essentially that of Rousseau. Rousseau thought
of the state as being formed by a social compact in which
"Each of us puts his person and all his power in common
under the supreme direction of the general will, and, in our
corporate capacity, we receive each member as an indivisible
part of the whole." 27 Those who are associated in the body
thus formed "take collectively the name of 'people, and
severally are called citizens, as sharing in the sovereign
power, and subjects, as being under the laws of the State."
The Sovereign is "formed wholly of the individuals who
compose it." 28

Taney's American background probably had a great deal

^9 Howard, 617-18 (184.9).

^Maryland v. 'Baltimore and Ohio R. Co., 3 Howard, 550 (1844).

20 See Chap. 10.

27 The Social Contract^ Book I, Chap. 6, p. 15.

^Ibid.y Book I, Chap. 7, p. 17.

34 ROGER B. TANEY

to do with the development of his ideas. In his own State
of Maryland the Declaration of Rights which formed part
of the constitution adopted in 1776 declared "That all gov-
ernment of right originates from the people, is founded in
compact only, and instituted solely for the good of the
whole." 29 His law teacher, Justice Jeremiah Townley Chase
said in one of his decisions, a The bill of rights and form of
government ... is a compact made by the people of Mary-
land among themselves, through the agency of a convention
selected and appointed for that purpose." And "This com-
pact is founded on the principle that the people being the
source of power, all government of right originates from
them." 30 It is not unnatural that Taney should have ex-
pressed similar ideas.

Taney's conception of the two sovereign bodies in the
United States, and the two compacts seems to have been very
much like that of Monroe, who wrote in a veto message to
Congress in 1822, "In the institution of the Government of
the United States by the citizens of every State a compact
was formed between the whole American people which has
the same force, and partakes of all the qualities to the extent
of its powers as a compact between the citizens of a State in
the formation of their own constitution. It can not be altered
except by those who formed it or in the mode prescribed by
the parties to the compact itself." 81

The Citizen is Subject As Well As Sovereign

, In Taney's theory, along with the privileges which accom-
panied membership in a republic where the people were sov-
ereign went also a peculiar responsibility of obedience to the
laws, and acquiescence in the engagements made by the con-

29 Perley Poore, op. cit. } pt. I, p. 817.

30 Whittington v. Polk } I Harris and Johnson, 242 (Md.-i8o2).

31 J. D. Richardson, A. Compilation of the Messages and Papers of the Presi-
dents, II, 147-48.

SOVEREIGNTY OF THE CORPORATE PEOPLE 35

stituted authorities. He thought that free government could
exist only when the citizens of the republic yielded ready
obedience to the laws made and administered by their repre-
seritatiyes^f __

In foreign affairs, he pointed out, the citizen is bound to
accept as obligatory the decisions of the government upon
subjects involved in the nation's relations with other coun-
tries. It is a settled rule of international law Jthat .the Citizen
is at war, with "tEe nation which his government has declared,
war against and that he shall commit no act of hostility
against a nation with which his government is at peace. Said
Taney:

It is, however more emphatically true in relation to the citizens
of the United States. For as the sovereignty resides in the people,
every citizen is a portion of it, and is himself personally bound by
the laws wEicri the representatives of the sovereignty may pass, or
the treaties into which they may enter, within the scope of their
delegated authority. And when that authority has plighted its
faith to another nation that there shall be peace and friendship
between the citizens of the two countries, every citizen of the
United States is equally and personally pledged. The compact is
made by the department of government upon which he himself
has agreed to confer the power. It is his own personal compact
as a portion of the sovereignty in whose behalf it is made. 33

Taney's views on this subject are perhaps comparable to
those of Rousseau who refers to the people of the state as
"citizens, as shaxingJrMtiie^

beingjind^ And there is striking

similarity to Montesquieu's statement that "In a democracy
the pepple^are^m some respects the^sqyereign, aHrS^btBgrsJ
the subject." 35 However, Taney emphasizes more the obliga-

** Ableman "v* Booth, 21 Howard, 525 (1858).

88 Kennett et al. v. Chambers, 14 Howard, 50 (1852).

84 The Social Contract, Book I, Chap. 6, p. 16.

85 The Spirit of the Laws, Book 2, Chap. 2.

36 ROGER B. TANEY

tion of the sovereign and the honor involved in his upholding
the compact which he has made rather than the aspect of the
citizen as subject. He did believe though that the citizen
should be compelled to obey the law if he refused to do so
voluntarily. He thought that "the safety of the community
depends upon the vigilant and firm execution of the law;
every one must be made to understand, and constantly to
feel, that its supremacy will be steadily enforced by the con-
stituted tribunals, and that liberty cannot exist under a feeble,
relaxed or indolent administration of its power. . . ," 36 This
is something like Rousseau's idea that the social compact
tacitly includes the engagement "that whoever refuses to
obey the general will shall be compelled to do so by the
whole body. This means nothing less than that he will be
forced to be free. . . ," 37

The Status of Individuals in the State

Taney held that the status of individuals living within the
territory of a state depended upon the sovereign will as ex-

In a case involving the power of

a State of the Union he said, "Every state has an undoubted
right tp,determinfiJ;^ and social condition,

of the persons domiciled within its territory 5 except in so far
as the powers of "the states in this respect are restrained, or
duties and obligations imposed upon them, by the Constitu-
tion of the United States." 38 In the supplement to the Dred
Scott opinion, referring to the status of Negroes in the
United States, he said, "It is purely an American question,
and depends entirely upon our own institutions, and upon
the construction and meaning of the constitutions we have
established." 39

8e Charge to the grand jury, United States Circuit Court, April Term 1836,
Campbell's Reports, 616.

37 'The Social Contract, Book I, Chap. 7, p. 18.

88 Strader et al. v. Graham y 10 Howard, 94 (1850).

39 Tyler, op. cit. 3 p. 606.

SOVEREIGNTY OF THE CORPORATE PEOPLE 37

All persons residing in the territory of a state were not
necessarily on the same basis. The citizens were the con-
trolling group. To Taney the characteristic of citizenship is
the fact that its possessor is a member of the social compact
which forms the state, and is "a component part of the sov-
ereignty." 40 Citizenship is acquired at the will of the cor-
porate body. Referring to the States formed at the time of
the American Revolution, in a statement which has already
been quoted in another connection, he said, "Those who . . .
associated themselves in a new political body . . . had the
power and the right to determine who should, and who
should not, be admitted as members of this association, and
share equally with themselves the sovereignty they had estab-
lished and retained in their own hands." 41

It is noticeable that Taney conceives of the States formed
at the time of the Revolution as new political associations
which have the power either to admit new members or to
keep them out. This idea is applied to the nation in the
Dred Scott opinion proper. He thought qfjheJ[Inijbed..States^.
as being a new political body created by the Constitution.
Citizens were admitted to this body according to the pro-,,
visions of the Constitution, and the Constitution had con-
ferred on Congress the power to establish a uniform rule for
naturalizing aliens. There was no other way by which citizen-
ship could be acquired. Taney draws his conclusions in a
paragraph 'distinguishing between the two political associa-
tions, the State and the nation, and the powers of the sov-
ereign members of each.

It is very clear, therefore, that no State can, by; any act or Jaw
of its own, passecf since the adoption of the constitution, introduce
a new member into the political community ,creat^ , by the, con-
stitution of the United States. It cannot make him a member of
this community by making him a member of its own. And for
40 ibid., P . 605. " ' "* 7Srf.,V 1 6o6L

38 ROGER B. TANEY

the same reason it cannot introduce any person, or description of
persons, who were not intended to be embraced in this new
political family, which the constitution brought into existence, but
were intended to be excluded from it. 42

Continuing his discussion of citizenship in the United
States, Taney says:

It is true, every person, and every class and description of
persons, who were at the time of the adoption of the constitution
recognized as citizens in the several States, became also citizens
of this new political body; but none other; it was formed by them,
and^fojhem and their ^gosterity, but no one else.f ... It was,
the^ union of those ,w t jio, were at that time members of distinct and
separate communities into one political family, whose power, for
certain specified purposes, was to extend over the whole territory
of the United States. 43

Looking at the American situation Taney conceives of a
State in the Union as an association of people, with certain
sovereign powers, which had before the formation of the
Union, and still has, the power to confer the privileges of
State citizenship "upon an alien, or any one it thinks proper.
. . ," 44 The nation is a larger association, composed orig-
inally of the people who were citizens of the States which
entered the Union. This larger association has all the powers
of sovereignty which were given to it by the people of the
smaller associations, and it has the exclusive right to admit
new citizens into it, in accordance with the provisions of the
federal Constitution. 45

Taney recognized the fact that a person may be a citizen
without having a right to vote or hold office. This depended
upon the laws. He says:

Undoubtedly, a person may be a citizen, that is a member of the
community who form the sovereignty, although he exercises no

42 Dred Scott v. Sandford, 19 Howard, 406 (1856).

48 Ibid., 406. ** MM., 405. Ibid.

SOVEREIGNTY OF THE CORPORATE PEOPLE 39

share of the political power, and is incapacitated from holding par-
ticular offices. Women and minors, who form a part of the
political family, cannot vote; and when a property qualification is
required to vote or hold a particular office, those who have not the
necessary qualification cannot vote or hold office; yet they are
citizens. 46

Taney regarded the Negroes in the United States as
occupjongTBythe will of the sovereign, an inferior position
in American society. He declares that they were not meant
by the makers of thjs^^n^tutiph tcfbe Included as jdtizens
ancljhe_^ays, "On the contrary^ they were at that time con-
sidered as a subordinate and inferior class of beings 1 who had
been subjugated by .the dominant race, and, whether eman-
cipated or not, yet remained subject to their authority, and
had no Tights oF privileges but such as those who held the
power and the government might choose to grant them." 47
And he goes on to say that it is not for the Supreme Court
to say whether such a policy was either just or wise. "The
decision of that question belonged to the political or Taw-
making power 5 to those who formed the sovereignty and
framed the constitution." 48

Taney's views on slavery will be discussed more fully in
a later chapter. It is not necessary to deal with them in detail
at this point, but simply to call attention to the J^t_that he
viewed^the status of slaves as a matter to l^. determined-
altogether by lawsln lcc6Tdance"with the constitution which *
expressed the will of the corporate sovereign.

Aliens constituted another group within the territory of
the nation whose status Taney was several times forced to
discuss. His views on this subject are in accordance with the
settled principles of international law. He held that the
sovereign could expel undesirable aliens or prevent them
49 md., 422. 4T IK*., 404. * ibid., 404-5 .

4O ROGER B. TANEY

from entering. 49 As to property rights of aliens, he said in
Mager v. Grima et aL, "Every state or nation may unques-
tionably refuse to allow an alien to take either real or personal
property, situated within its limits, either as heir or legatee,
and may, if it thinks proper, direct that property so descending
or bequeathed shall belong to the state." 50

In Taney's system whether the individual is a citizen,
slave, or alien, his status and his rights depend upon the law
which is an expression of the sovereign will. There is no
natural right to citizenship, to freedom or to equality. There
is no natural right to hold property. The corporate will of
the sovereign is the final authority.

40 Holmes v. Jennison, 14 Peters, 568-69 (184.0) j Dissenting opinion in
Passenger Cases f 7 Howard, 466-67 (1849).

50 8 Howard, 493-94 (1849). See also Prevost v. Greneaux, 19 HoWard, I
(1856).

Ill

THE SOVEREIGN WILL

The Nature of Sovereignty

WE CANNOT presume to get an adequate conception of
Taney's theory of the nature of sovereignty from any isolated
expressions on the subject which may be found in his opinions.
Rather, his theory must be distilled from a great many of his
expressions and from the general lines of thought that run
through all of his judicial decisions. However, some of his
concise statements on the subject are particularly helpful
because they are pointed indications of what his theory was.

The term "sovereignty" is a rather difficult one to deal
with because it has been used to represent a wide variety of
conceptions. Some of the earlier writers on the subject de-
veloped the idea of a powerful sovereign within the state but,
thinking of the sovereign as an individual, or at most a com-
paratively small body of individuals, were not willing to give
it quite the omnipotent power which they thought should
reside somewhere within the state. 1 Others paid less atten-
tion to sovereignty and gave more thought to individual
rights, apparently finding omnipotent sovereignty and indi-
vidual liberty incompatible. 2 It remained for Rousseau to
attempt the reconciliation of the two.

Rousseau thought of the state as "a moral person whose
life is in the union of its members" which must have a com-
pelling force "in order to move and dispose each part as may

1 This is true of Hobbes and Bodin. See Thomas Hobbes, Leviathan, pt. 2,
Chaps. 20, 21$ also W. A. Dunning, A History of Political Theories from Luther
to Montesquieu, pp. 96-103.

2 This is especially evident in Locke. See Of Civil Government, Book 2, Chap.
ii, pp. 184-85, 187. See also Montesquieu, The Spirit of Latvs, Book 5, Chap.
7, pp. 34-36; Book 2, Chap. 6, pp. 112-20.

UO

4-2 ROGER B. TANEY

be most advantageous to the whole." And he said, "As na-
ture gives each man absolute power over all his members, the
social compact gives the body politic absolute power over all
its members also 5 and it is this power which, under the direc-
tion of the general will, bears as I have said, the name of
Sovereignty." 3 This seems to be essentially the theory of
sovereignty that Taney held.

In his decision in the case of O Mo Life Insurance and Trust
Co. v. D&bolt Taney said, "It will be admitted on all hands,
that with the exception of the powers surrendered by the
Constitution of the United States, the people of the several
States are absolutely and unconditionally sovereign within
their respective territories." 4 He called attention to the fact
that this power might be used unwisely, saying:

There are, undoubtedly, fixed and immutable principles of
justice, sound policy, and public duty, which no State can disregard
without serious injury to the community, and to the individual
citizens who compose it. And contracts are sometimes incautiously
made by States . . . and franchises, immunities, and exemptions
from public burdens improvidently granted. But whether such
contracts should be made or not, is exclusively for the consideration
of the State. . . . For it can never be maintained in any tribunal
in this country, that the people of a State, in the exercise of the
powers of sovereignty, can be restrained within narrower limits
than those fixed by the Constitution of the United States, upon the
ground that they may make contracts ruinous or injurious to them-
selves. The principle that they are the best judges of what is for
their own interest, is the foundation of our political institutions. 5

3 The Social Contract, Book 2, Chap. 4, pp. 26-27.

* 1 6 Howard, 428 (1853). Taney's conception of the sovereignty of the state
is best revealed in his discussions of the powers of the States of the United States.
The federal government was created for specific purposes and its power confined
within relatively narrow boundaries by the Constitution. It is in the States that he
finds the residue of sovereignty to which he sets no limits save those of the Consti-
tution.

5 Ibid., 428-29.

THE SOVEREIGN WILL 43

TjSCognixes that principles .of reason and justice will
limit the exercise of the state's power, but the limitations, wilL
be iinposed^y the state Jtself^and, not by any power outside,
itself. Rousseau must have had a similar conception of the
sovereign as being limited only by itself, for he said, "Each
man alienates, I admit, by the social compact, only such part
of his powers, goods and liberty as it is important for the
community to control 5 but it must also be granted that the
Sovereign is sole judge of what is important." 6

Taney's Application of his Theory of Sovereignty

In spite of the unqualified way in which Taney speaks of
sovereignty we cannot be sure of his actual conception of the
power of the state without looking beyond his words to his
judicial decisions. Bodin defined sovereignty as "supreme
power over citizens and subjects, unrestrained by the laws,"
and then went on to say that there were certain laws which
did restrain the sovereign. 7 Blackstone in his Commentaries
on the Laws of England speaks of the sovereign power as
being "a supreme irresistible, absolute, uncontrolled author-
ity," 8 and then a little later he devotes a chapter to the "abso-
lute rights of individuals," 9 defining the absolute rights of
individuals as those which "would belong to their persons
merely in a state of nature, and which every man is entitled
to enjoy, whether out of society or in it." 10 Thus it is evident
that men who talk about "supreme power" do not always do
so without important reservations in mind.

6 The Social Contract, Book 2, Chap. 4, p. 27.

7 "Maiestas est summa in cives ac subditos legibusque soluta potestas. . . ."
De Republica, Book I, Chap. 8, p. 123. Bodin says the people can confer
sovereignty on a ruler, but the ruler is limited by certain laws. See ibid., pp.

134-37-

8 Commentaries on the Laws of England (ijth ed.) Introduction, Section 2,

pp. 48-49.

9 Chap. i.

10 Book i, Chap. I, p. 123.

44 ROGER B. TANEY

The only instance in which Taney places any limitation,
other than constitutional, on the power of the state is in an
opinion where he declares that "a neutral power is not at
liberty to decide according to her own convenience, whether
she will perform her obligations or not 5 she is bound to per-
form them, and if she fails to do so, she becomes herself
responsible for the injury which she ought to have pre-
vented." 11 This would indicate that the state was bound by
international law in its international relations. That his the-
ory of the obligations of international law was not incom-
patible with his theory of sovereignty may be gathered from
his decision in Kentucky v. Denmson^ 2 a case involving two
States of the American Union. In this decision he referred
to the interstate rendition clause of the Constitution as a com-
pact between the States which implied an "absolute right"
on the part of one State and a "correlative obligation" on the
part of the other, 13 but the obligation is finally defined as
"the moral duty which this compact created." 14 He con-
cludes that there is nothing which the Court can do to compel
compliance with the compact. "The performance of this
duty ... is left to depend on the fidelity of the State exec-
utive to the compact entered into with the other States when
it ... became a member of the Union." 15 Applying this
principle to international relations, it would seem that if a
sovereign state refused to meet its obligations nothing could
be done about it, unless there was a resort to war. The obli-
gation of international law would seem to be a moral one.
The sovereign could use its judgment about compliance.

Taney thought of the allocation of sovereignty as being
beyond the province of the courts of law. In his dissenting
opinion in the case of Rhode Island v. Massachusetts he said

11 Ardrey v. Karthaus, Campbell's Reports, 383 (1836).
^24 Howard, 66 (1860). 13 Ibid., 103.

14 #^107. lbid., 109.

THE SOVEREIGN WILL 45

"Sovereignty and jurisdiction are not matters of property 5
for the allegiance in the disputed territory cannot be a matter
of property. Rhode Island, therefore, sues for political
rights. . . . Contests for rights of sovereignty and jurisdic-
tion between states over any particular territory, are not, in
my judgment, the subjects of judicial cognisance and control,
to be recovered and enforced in an ordinary suit; and are,
therefore, not within the grant of judicial power contained in
the constitution." 16 He said this in spite of the fact that
the Constitution of the United States provides that "The
judicial Power shall extend ... to Controversies between
two or more States. . . ," 17

By saying that sovereignty is a political matter and not
justiciable" he evidently means that an expression of the spy-
^erejgn wil[ js necessary to subtract from the territorial limits
of sovereignty. The courts cannot do it by a legal decision.
Sovereignty is inherent in the people and can be limited only
by themselves or by their political agents who may be given
specific power to make agreements binding the state.

We have already discussed Taney's theory in regard to
the power of the sovereign state to determine the status of
individuals within its territorial limits. In future chapters
vre shall consider his views on the power of the sovereign as
applied in the United States in connection with the police
power and slavery and the fundamental rights of individuals.
At this point we may throw some additional light on his
theory of the sovereign power by considering his views on
the taxing power, and on the obligations of the sovereign.

In one of his decisions, after declaring that the States of
the Union are "absolutely and unconditionally sovereign"
except as they are limited by the Constitution, Taney says,
"It follows that they may impose what taxes they think
proper upon persons or things within their dominion, and

16 ;? Peters, 753 (1838). "Article 3, Sec. 2.

46 ROGER B. TANEY

may apportion them according to their discretion and judg-
ment. They may, if they deem it advisable to do so, exempt
certain descriptions of property from taxation, and lay the
burden of supporting the government elsewhere." 18

In the case of Mager v. Grima et al., involving an in-
heritance tax on property left to aliens, Taney said, "Now the
law in question is nothing more than an exercise of the power
which every state and sovereignty possesses, of regulating the
manner and term upon which property, real or personal
within its dominion may be transmitted by last will and
testament, or by inheritance j and of prescribing who shall and
who shall not be capable of taEnglf l wi ^ ~&nctj" "We can see
no objection to such a tax, whether imposed on citizens and
aliens alike, or upon the latter exclusively." 20

English speaking peoples have always regarded the tax-
ing .power as one of the powers of government which it was
most important to keep under popular control. In the ex-
pressions just quoted Taney applies to it his "theory of the
supreme power of the state, setting no limits, except constitu-
tional ones, to the power of the state to levy taxes. r ,This
statement in the inheritance tax case indicates that he believed
that the state could do away with inheritances all together
and itself take the property of deceased persons if it saw fit to
dojsa

It is a settled rule of public law that a sovereign state
cannot be sued without its own consent. Taney applied and
interpreted this rule in a number of his judicial decisions. In
Beers v. State of Arkansas he said:

It is an established principle of jurisprudence in all civilized
nations that the sovereign cannot be sued in its own courts, or in
any other, without its consent and permission; but it may, if it

u Ohio Life Insurance and Trust Co. v. Debolt, 1 6 Howard, 428 (1853).

19 8 Howard, 493 (1849).

20 Ibid. 9 494. See also Prevost v. Greneaux > 19 Howard, 7 (1856).

THE SOVEREIGN WILL 47

thinks proper, waive this privilege, and permit itself to be made a
defendant in a suit by individuals, or by another State. And this
permission is altogether voluntary on the part of the sovereignty,
it follows that it may prescribe the terms and conditions on which
it consents to be sued, and the manner in which the suit shall be
conducted, and may withdraw its consent whenever it may sup-
pose that justice to the public requires it. 21

In another opinion he said:

Those who deal in the bonds and obligations of a sovereign State
are aware that they must rely altogether on the sense of justice
and good faith of the State; and that the judiciary of the State
cannot interfere to enforce these contracts without the consent of
the State. . . , 22

Taney recognized a moral obligation on the state to see
that justice was done. In a case involving a claim of the
Bank of the United States, referring to a statute which the
Bank claimed applied to the government as well as to indi-
viduals, Taney said:

If such be the construction of this law ... it is the first in-
stance in the history of nations in which a sovereignty has imposed
a penalty upon itself, in order to compel it to be honest in its deal-
ings with individuals. A sovereignty is always presumed to act
upon principles of justice, and if, from mistake or oversight, it does
injury to a nation or an individual, it is always supposed to be ready
and willing to repair it. 23

These opinions show that Taney thought of the sovereign
as being above the laws which were made for individuals.
But the sovereign was presumed to be willing to do justice
without compulsion. Taney's conception of the obligation of
justice which accompanies sovereignty has already been

31 20 Howard, 529 (1857).

22 Bank of Washington et al. v. State of Arkansas et al. } 2O Howard, 532

23 Sank of the United States v. The United States, 2 Howard (Appendix),
759-60 (1844).

4 ROGER B. TANEY

noticed in connection with the discussion of the sovereignty of
the people. 24 He thought that because the citizen was
sovereign he was bound to obey the law in a sense in which
he would not be bound were he not a possessor of sov-
ereignty. 25 The last statement quoted in the paragraph above
implies that he thought of the state as a whole as being bound
by the sense of honor which must accompany sovereignty.

The Government as the Agent of the Sovereign

Taney makes a sharp distinction between the sovereign and
the government. He regards the government as being simply
the agent of the sovereign and having only as much power
asjhe sovereign has seen fit to bestow uponjt. In the Dred
Scott opinion, referring to the acquisition of territory by the
United States, he said "it was acquired by the general gov-
ernment, as the representative and trustee of the people of
the United States and it must therefore be held in that char-
acter for their common and equal benefit. . . ," 26

In another opinion he discusses the power which may be
conferred on the government, saying "It is equally clear . . .
that the people of a State may, by the form of government
they adopt, confer on their public servants and representatives
all the powers and rights of sovereignty which they them-
selves possess ; or may restrict them within such limits as may
be deemed best and safest for the public interest." 27 And
he goes on to explain that "The powers of sovereignty con-
fided to the legislative body of a State are undoubtedly a
trust committed to them, to be executed to the best of their
judgment for the public good. . . ," 28

Taney's idea is similar to that expressed by Alexander

2 *In Chap. 2.

25 ' Kennett et al. v. Chambers, 14 Howard, 50 (1852).

20 Dred Scoff v. Sandford, 19 Howard, 448 (1856).

27 Ohio Life Insurance and Trust Co. v. Debolt, 16 Howard, 429 (1853).

28 Ibid., 431.

THE SOVEREIGN WILL 49

Hamilton when he wrote in The Federalist that the national
and State governments of the United States were the "agents
and trustees of the People." 29 In regard to American gov-
ernment Taney would agree with Rousseau's doctrine that
governmental power existed subject to the will of the sov-
~ereign, as expressed in the statement, "This power Jt_ can
limit^modify or recover at pleasure j for the alienation of such
a right is incompatible with the nature of the social body, aaci
contrary to the end of the association." 30 Taney's words are,
"No one, we believe, has ever doubted the proposition that,
according to the institutions of this country, the sovereignty
in every State resides in the people of the State, and that
they may alter and change their form of government at their
own pleasure." 31

There is perhaps a difference between Taney and Rous-
seau at this point in that Rousseau implies that there never
could be established a commission of government which could
not be modified or withdrawn by the sovereign at will, while
Taney finds the right of the sovereign people to change the
form of government at their will in "the institutions of this
country." By this expression he probably meant the consti-
tutions of this country. This is a distinction which may be
observed at different points in Taney's theory. Whereas
Rousseau speaks in general terms of broad powers and neg-
atives, Taney enunciates principles of government with the
constitutions of the United States in mind. He is a consti-
tutional lawyer who finds in the Constitution the supreme
law of the land.

Because he thinks of government as a trust which is to be
exercised for the good of the people, Taney holds that one
legislature cannot limit the power of its successors, unless it

29 Number 45, The Foederalist, edited by H. B. Dawson, p. 325.

80 The Social Contract, Book 3, Chap. I, p. 50.

81 Luther v. Borden, 7 Howard, 47 (1848),

5O ROGER B. TANEY

has been given specific authority to do so by the constitution
which created it. As a member of the Supreme Court he
consistently applied this rule. In his decision in Ohio Life
Insurance and Trust Co. v. Debolt, after saying that the
powers of sovereignty confided to the legislature are a trust
from the people he adds, "and no one legislature can, by its
own act, disarm their successors of any of the powers or rights
of sovereignty confided by the people to the legislative body,
unless they are authorized to do so by the constitution under
which they are elected." 32 On another occasion, in a case in-
volving the powers of the government of the United States
he said, "Yet it may perhaps be doubted whether Congress
could by law confer on an individual, or individuals, a right
which would in any degree impair the constitutional powers
of the legislative or executive departments of the Govern-
ment. . . ." 33 That he did not believe that even the "neces-
sary and proper" clause in the Constitution of the United
States authorized such a surrender of power is indicated by
the statement which he wrote into Jackson's Bank veto mes-
sage, 34 "It can not be 'necessary* or proper* for Congress to
barter away or divest themselves of any of the powers vested
in them by the Constitution to be exercised for the public
good." 35

Since Taney's time, the doctrine that the government can-
not divest itself of its important powers of legislating for the
general welfare has been written into American constitutional
law in the rule, now well established, that the State govern-
ments cannot barter away the police power. 36 In language

82 16 Howard, 431 (1853).

33 Brown v. Duchesne, 19 Howard, 198 (1856).

34 Taney says in his account of the Bank struggle, which is now in the Library
of Congress in manuscript form, that he and Donelson wrote most of the veto
message. See also Correspondence of Andrew Jackson, IV, 458, note.

85 Bank veto message, July 10, 1832 Richardson, op. cit., II, 583-84.

86 Apparently the first definite move toward the establishment of this rule by
the Supreme Court is the statement of Mr. Justice Field in the decision of Boyd v.

THE SOVEREIGN WILL 51

which reveals a conception of government essentially like
Taney's, Chief Justice Waite said in the decision of Stone v.
Mississippi:

No legislature can bargain away the public health or the public
morals. The people themselves cannot do it, much less their
servants. . . . But the power of governing is a trust committed
by the people to the government, no part of which can be granted
away. . . . The contracts which the Constitution protects are
those that relate to property rights, not governmental. 37

How the Sovereign Will is Expressed

i. The Constitution In a state where the people are the
sovereign there may be some question as to how the sovereign
will is expressed. Locke^aad Rousseau^assume.that at some
time there was an original compact made by unanimous con-
sent, and that after that a majority may be allowed to bind
the whole. 38 Taney, dealing with a state which he knew had

Alabama, 94 U. S. 650 (1876): "We are not prepared to admit that it is com-
petent for one legislature, by any contract with an individual, to restrain the power
of a subsequent legislature to legislate for the public welfare, and to that end to
suppress any and all practices tending to corrupt the public morals." Although
this statement was obiter dictum it was later cited in support of decisions where the
Court definitely applied the rule. The rule was applied the following year in Beer
Company v. Massachusetts, 97 U. S. 33 (1877).

^lOl U. S. 819-20 (1879). It should be noted perhaps that Taney never did
say that the people did not have the power to bargain away the "public health or
the public morals." He did however construe the police power very generously,
as we shall see in the chapter dealing with that subject. In the License- Cases, 5
Howard, 576-77, In connection with a discussion of the relation of the commerce
power as limiting the police power of the States, he said, "But it must be remem-
bered that disease, pestilence, and pauperism are not subjects of commerce, although
sometimes among attendant evils. They are not things to be regulated and
trafficked in, but to be prevented, as far as human foresight or human means can
guard against them." He always construed the charters of corporations so strictly
that he left the power of government to legislate for the general welfare unim-
paired. See Charles River Bridge v. Warren Bridge, II Peters, 420 (1837)5
Perrine v. Chesapeake and Delaware Canal Co., 9 Howard, 172 (1850); Ohio
Life Insurance and Trust Co. v. Debolt, 1 6 Howard, 416 (1853).

88 Locke says, "For, when any number of men have, by the consent of every
individual, made a community, they have thereby made that community one body,
with a power to act as one body, which is only by the will and determination of the

5 2 ROGER B. TANEY

not been established by the unanimous consent of those who
composed it, never says anything about a hypothetical com-
pact of the past which authorizes a fraction of the people to
bind the whole. Speaking of the Federal Constitution which,
as we have already noticed, he regarded as the compact which
created the sovereign body known as the United States, he
said:

The Constitution was, in the language of the Ordinance, "adopted
by common consent," and the people of the territories must neces-
sarily be regarded as parties to it, and bound by it, and entitled to
its benefits, as well as the people of the then existing states. It be-
came the supreme law throughout the United States. 39

In these statements he assumes that the sovereign power
was organized and the sovereign will expressed by a compact
which was "adopted by common consent," although it was
not unanimous consent. He regards the Constitution as the
supreme law, binding the people in the Territory of the
United States as well as the people in the States, even though
the people in the Territory had not been given an opportunity
to vote for or against its ratification.

Taney regarded the will of the sovereign as a matter to
be determined through the forms of law. In questions which
concerned merely the constitution and laws of the States of
the Union, which he regarded as sovereign bodies, he applied
the rule that the Supreme Court would accept the interpreta-
tion of the State courts as authoritative. 40 This implies that
the will of the sovereign is to be determined by its own law
interpreting body.

majority." Of Civil Government, Book 2, Chap. 8, pp. 164-65. Rousseau says,
"The law of majority voting is itself something established by convention, and
presupposes unanimity, on one occasion at least." The Social Contract^ Book I,
Chap. 5, p. 14.

39 Strader et al. v. Graham, 10 Howard, 96 (1850).

* McBride v. Hoey, n Peters, 172 (1837); Holmes v. Jennison, 14 Peters,
562 (1840); Luther v. Borden, 7 Howard, 40 (1848); Nesmith et al. v. Sheldon
et al. } 7 Howard, 818 (1848).

THE SOVEREIGN WILL 53

In the case of Luther v. Borden et al.^ which arose as a
result of the Dorr Rebellion in Rhode Island, the Supreme
Court was asked to decide which of two governments in
Rhode Island was the authoritative one. In his decision of
the case Taney said, "Moreover, the Constitution of the
United States, as far as it has provided for an emergency of
this kind, and authorized the general government to interfere
in the domestic concerns of a State, has treated the subject as
political in its nature and placed the power in the hands of
that department." And he goes on to say, "Under . . . the
Constitution it rests with Congress to decide what government
is the established one in a State. . V TAndits decision is, bind-
ing on every other department, and could not be .questioned
in a judicial tribunal." 42 It will be noticed that he does not
look into the facts to see which government represented the
will of the sovereign people. He leaves the matter of decid-
ing which is the legitimate government to the political de-
partments and accepts their judgment as final. This, he
thinks is the method prescribed by the Constitution.

Taney again recognizes the principle that the sovereign
will can be expressed only according to the provisions of the
constitutional compact when he says in Ableman v. Booth
that the people of all the States are solemnly pledged "to
support the constitution as it is, in all its provisions, until they
shall be altered in the manner which the constitution itself
prescribes." 43 In his opinion in the case of John Merryman 44
he denied the right of the president to act outside his consti-
tutional grant of powers, even though an emergency existed.
Even though the existence of the state itself might be in
danger the only expression of the sovereign will which he

^7 Howard, I (1849).

43 Ibid.) 42. See also Kennett el al. v. Chambers, 14 Howard, 50-51 (1852).

43 21 Howard, 525 (1858).

** Ex parte Merryman, Campbell's Reports, 254 (1861).

54 ROGER B. TANEY

recognized as authentic was the constitutional expression. In
this opinion he said:

Nor can any argument be drawn from the nature of sov-
ereignty, or the necessity of government, for self-defence in times
of tumult and danger. The government of the United States is
one of delegated and limited powers; it derives its existence and
authority altogether from the constitution, and neither of its
branches, executive, legislative or judicial, can exercise any of the
powers of government beyond those specified and granted; for
the tenth article of the amendments to the constitution, in express
terms, provides that "the powers not delegated to the United
States by the constitution, nor prohibited by it to the states, are
reserved to the states, respectively, or to the people." 45

In several of his decisions involving acts of legislation
Taney reiterated the principle that the Constitution is the
supreme law of the land and hence superior to the will of
the legislature. In the License Cases he said, "The constitu-
tion of the United States declares that the constitution, and
the laws of the United States which shall be made in pur-
suance thereof . . . shall be the supreme law of the land.
It follows that a law of Congress regulating commerce with
foreign nations, or among the several States, is the supreme
law; and if the law of a State is in conflict with it, the law of
Congress must prevail, and the State law cease to operate so
far as it is repugnant to the law of the United States." 46 And
in another decision he said, "And as the constitution is the
fundamental and supreme law, .if it appears that an act of
congress is not pursuant to and within the limits of the power
45 ibid., 260-61. "

^5 Howard, 573-74 (1846). Compare with John Marshall's statement in
Cohens v. The Sfate of Virginia, 6 Wheaton, 414 (1821): "America has chosen to
be, in many respects, and to many purposes, a nation; and for all these purposes,
her government is complete; to all these objects, it is competent. The people have
declared, that in the exercise of all powers given for these objects, it is supreme.
. . . The constitution and laws of a State, so far as they are repugnant to the
constitution and laws of the United States, are absolutely void."

THE SOVEREIGN WILL 55

assigned to the federal government, it is the duty o the
courts of the United States to declare it unconstitutional and

The idea that the Constitution represented the will of the
sovereign people more directly than it did an act of the
legislature and hence could not be repealed or modified by
the legislature, but must be upheld by the courts, is a
peculiarly American doctrine. 48 Madison expressed the idea
in the constitutional convention, saying "A law violating a
constitution established by the people themselves, would be
considered by the Judges as null & void." 49 The theory was
expounded in the Federalist?* and later applied by Chief
Justice Marshall in the celebrated case of Marbury *u. Madi-
son. 51 The underlying principle was, as Mr. Justice Pater-
son aptly put it, "The Constitution is the work or will of the
people themselves, in their original, sovereign, and unlimited
capacity. Law is the work or will of the legislature in their
derivative and subordinate capacity. The one is the work of
the Creator, and the other of the creature." 52 This was an
essential part of Taney's theory. The will of the sovereign

47 Ableman v. Booth, 21 Howard, 520 (1858).

48 "The principle that statutory law, in order to be recognized as valid by the
courts, must, in all cases, be In conformity with constitutional requirements, is a
product of American law, and though now found in the jurisprudential systems of
some other countries, has nowhere received the development and extended applica-
tion that it has received in the United States." W. W. Willoughby, The Consti-
tutional Law of the United States, 2d ed., I, I. By permission of Baker, Voorhis
& Co., publishers.

*July 23. Max Farrand, The Records of the Federal Convention of 1787,
II, 93-

50 No. 78 (Hamilton). At the beginning of his argument in favor of judicial
review of legislation Hamilton says, "There is no position which depends on
clearer principles, than that every act of a delegated authority, contrary to the
tenor of the commission under which it is exercised, is void. No Legislative act,
therefore, contrary to the Constitution, can be valid. To deny this, would be to
affirm, that the deputy is greater than his principal j that the servant is above his
master j . . ." The Foederalist > p. 541. See also pp. 542-43.

51 1 Cranch, 137 (1803).

^Vanhorne's Lessee v. Dorrance } z Dallas, 308 (1795),

56 ROGER B. TANEY

people was the supreme law. The acts of their agents were
binding only when in harmony with that will as expressed
in the Constitution.

2. The Interpretation of the CcJ^^V^o^-^Belieying. as_he
did that the Constitution was the ultimate expression of the
sovereign will, Taney held that it should be interpreted as
it was written. Referring to "those who formed the sov-
ereignty and framed the constitution" Taney said, "TThe duty
.of the court is, to interpret Jhe instrument Jthejr ^ a X5 f^P 1 ?^.
with the best lights we can obtain on the subject, and to ad-
minister it as we find it, according to its true intent andT mean-
ing when it was adopted?' 5 ^ As long as "there is no alteration
or change in the Constitution," he held "It is still in full
force according^ to its original meaning." 54 He thought that
the courts could not be influenced by the acts of the legisla-
ture, when they were interpreting the Constitution. In a case
involving an unconstitutional law he said, "The act of no
future legislature can alter the meaning of the words used in
the Constitution j they remain the same, and must always be
construed and administered in courts of justice, according to
their legal import, as they stand in that instrument, whether
future legislatures do or do not obey its mandates, and pass
laws to enforce its provisions." 55

Taney's theory that the Constitution must be interpreted
as written, regardless of changing conditions seems, and per-
haps is, conservative. However, it follows naturally from his
conception of the sovereignty of the people and the supremacy
of the 'Constitution which they have established. If Jthe court
is to act only as the agent of the sovereign it cannot modify
the written expression of the sovereign will. The presurrip-

63 Dred Scoff v. Sandford, 19 Howard, 405 (1856).

64 Supplement to the Dred Scott Opinion, in Tyler, op. cit., p. 602.

65 Dill v. Elliott, Campbell's Reports, 239-40 (1854).

THE SOVEREIGN WILL 57

tion is that the sovereign people would themselves change
the Constitution if they wanted it changed.

In determining the meaning of the constitutional pro-
visions, Taney thought that the interpretation of the men who
wrote the Constitution was entitled to great respect. In one
of his decisions he said:

Independently, however, of any judicial authority, the con-
clusions of my own mind must have been very clear and free from
doubt, before I should have felt myself justified in pronouncing an
act of congress passed in 1789 a violation of the constitution. It
was the first congress that met under the constitution, and in it
were many men who had taken a prominent and leading part in
framing and supporting that instrument, and who certainly well
understood the meaning of the words they used. 56

He believed too that the words of the Constitution should
be carefully examined, and that "no word was unnecessarily
used, or needlessly added." In the Constitution of the
United States, he said "Every word appears to have been
weighed with the utmost deliberation, and its force and effect
to have been fully understood." 57

Although Taney was careful to ascertain the meaning of
the Constitution as written he did not construe it so strictly
as to interfere with its effective operation as a framework of
government. As Attorney General he expressed the opinion
that "The constitution was formed for practical purposes, and
a construction that defeats the very object of the grant of

56 Gittmgs v. Crawjord, Campbell's Reports, 7 (1838). John Marshall also
attached great weight to contemporaneous exposition of the Constitution. In
Cohens v. Virginia, 6 Wheaton, 418 (1821) he said "Great weight has always
been attached and very rightly attached, to contemporaneous exposition. . . . The
opinion of the Federalist has always been considered as of great authority. . .
Its intrinsic merit entitles it to this high rank; and the part two of its authors
performed in framing the constitution, put it very much In their power to explain
the views with which it was framed."

^Holmes v. Jennhon, 14 Peters, 571 (1840). For an application of this rule
see Dred Scott v. Sandford, 19 Howard, 442 (1856).

30 ROGER B. TANEY

power cannot be a true one." 58 And in one of his decisions
he said, "The constitution looked to the essence and substance
of things, and not to mere form." 59 That he did not construe
the Constitution narrowly is perhaps best indicated by the
facts that during his twenty-eight years as a member of the
Supreme Court he held only one act of Congress unconstitu-
tional, 60 and was noticeably generous in upholding the power
of the State legislatures to enact measures for the general
welfare. 61

3. The Interpretation of the Law Taney regarded as bind-
ing, the laws which. were passed by ""the representatives of
the sovereignty . . . within the scope of their delegated
authority." 62 Blackstone, regarding the King, Lords, and
Commons as sovereign in England, defines municipal law as
"a rule of civil conduct prescribed by the supreme power In a
state." Taney, regarding the people as sovereign in the
United States holds the legislative acts of their agents to be
binding so long as they act within the authority given them
by the sovereign.

Speaking for the Supreme Court he said, "It is our duty
to expoun^ and execute the Jaw as we find, it. . .*7 55i "~The
justice or injustice of a law was not a matter for the courts to
look into. They must accept the will of the political branches
of the government as final on that score. 65 The courts must

58 To the President, July 19, 1832, Official Opinions of the Attorneys General,
II (1825-1835), 527.

58 Holmes v. Jennison, 14 Peters, 573 (1840).
The Missouri Compromise in Dred Scott, v, Sandford, 19 Howard 393

61 See Chap. 7.

62 Kennett et al. v. Chamber s y 14 Howard, 50 (1852).

63 Commentaries on the Laws of England, I3th ed., Introduction, Sec. 2, p. 46.

64 The United States v. Rogers, 4 Howard, 572 (1854).

00 "It would be useless at this day to inquire whether the principle thus adopted
is just or not or to speak of the manner in which the power claimed was in many
instances exercised . . . were the right and the propriety of exercising- this power
now open to question, yet it is a question for the law-making and political depart-
ment of the government, and not for the judicial." Ibid., 572.

THE SOVEREIGN WILL 59

also accept the judgment of the legislature as to the need for
legislation. In one of his opinions he said, "If, therefore,
there be an evil, it may easily be corrected by the legislative
authority of the general government. But if Congress have
not thought proper ... to exercise this power, and public
mischief has arisen ... it does not follow that the judicial
power of the United States may step in and supply what the
legislative authority has omitted to perform." 66 He thus
places the responsibility for lawmaking squarely upon those
"who have Been intrusted with that function by the Constitu-
tion.,

In applying the law, Taney held that the courts should ,
look to the intention of the lawmakers. In one of his de-
cisions, after "explaining that it was a settled rule of the
Court to construe penal statutes rather strictly, he said, "Yet
the evident intention of the legislature ought not to be de-
feated by a forced and overstrict construction." 67 On another
occasion he said:

It is, undoubtedly, j the duty of the court to ascertain the mean-
ing of the legislature| from the words used* in the statute, and the
subject matter to which it relates; and to restrain 'its' operation
within narrower limits than its words import, if the court are satis-
fied that the literal meaning of its language would extend to cases
which the legislature never ctesigned to embrace in it. 6 ^

These principles of construction were well established in
English law. Blackstone said in his Commentaries, "The
fairest and most rational method to interpret the will of the
legislator, is by exploring his intentions at the time when the

Pennsylvania v. Wheeling Bridge Co. et aL, 13 Howard, 581 (1851). Dis-
senting opinion.

07 United States v, Morris, 14 Peters, 464 (1840).

68 Brewer v. Blougher, !4*Peters, 198 (1840). Compare with Blackstone, "As
to the effects and consequence^ the rule Is, that where words bear either none, or a
very absurd signification, if literally understood, we must a little deviate from the
received sense of them." Commentaries on the Laws of England, I3th ed., Intro-
duction, Sec. 2, p. 6l.

6O ROGER B. TANEY

law was made, by signs the most natural and probable." 69
* Taney followed this rule in interpreting both statutes and
constitutional provisions. 70

Taney was keenly alive to the importance of the courts in
interpreting the. law r but he never forgot lhat jt" was tHe will
of the sovereign and not the will of the courts that was law.
Consequently,, although he regarded constitutional acts of
Congress as the supreme law, he cut through the technicalities
of the common law or broke with judicial precedents when
they seemed to interfere with the adminisIraJiQIL Q justice.

g attitude toward acts of Congress

and toward the judicial forms of the law is indicated by the
statement in one of his decisions, "But this_court does not feel
Jtself authorized to treat the directions of an act of Congress
as if ^gftf tfeat a. technical difficulty growing out of ancient
rules of the common law." 71

His was the conception which Charles Warren expressed
when he said, "However the Court may interpret the pro-
visions of the Constitution, it is still the Constitution which is
the law and not the decision of the Court." 72 In 1832 he
wrote into Jackson's Bank Veto message the statement that
"Mere precedent is a dangerous source of authority. . . ," 73
In 1848 in his dissent in the Passenger Cases he said, after
referring to a previous decision of the Court,

After such opinions, judicially delivered, I had supposed that ques-
tion to be settled, so far as any question upon the construction of
the constitution, ought to be regarded as closed by the decision of
this court. I do not, however, object to the revision of it, and am
quite willing that it be regarded hereafter as the law of this court,

09 Sec. 2, p. 59.

70 His Dred Scott opinion, 19 Howard, 393, is an excellent example of the
application of this rule to constitutional interpretation.

71 United States v. Curry et al, 6 Howard, 113 (1847).

72 The Supreme Court in United States History, II, 749.

73 Richardson, op. cit.j II, 581.

THE SOVEREIGN WILL 6 1

that its opinion upon the construction of the constitution is always
open to discussion when it is supposed to have been founded in
error, and that its judicial authority should hereafter depend alto-
gether on the force of the reasoning by which it is supported. 74

Taney's most important break with the rule of stare
deems was in the case ofj^enesee Chief v. Fitzhugh. 75 Pre-

vious to that time the courts ^2^j w g^^^ ac j inter-
preted admiralty jurisdiction as extending only over tide
water, in accordance with the rule of English common law.
In this decision Taney extended admiralty jurisdiction in the
United States to the inland navigable waters beyond the ebb
and flow of the tide. In so doing he overruled two previous
decisions of the Supreme Court 76 and a doctrine previously
regarded as settled. 77 His decision applied the law in accord-
ance with the obvious needs of American conditions. ._"7~ ~"~

The liberalizing injlun^^

has not been confined tojts influence. on admiralty law. It
has been cited on numerous occasions and under a variety of
circumstances when judges have been impelled to break with
precedent in order to accomplish jwhat seemed to .Ifiem^ tpjbe
the real purposes of the Constitution. In 1895 Chief Justice
Fuller, in a decision of the Supreme Court declared, after
quoting Taney's words in the Genesee Chief case, that the
duty of the Court to maintain the fundamental law of the
Constitution "requires it not to extend any decision upon a

74 7 Howard, 470 (1848). Mr. Justice Brandeis accepts this as the correct
rule for judicial Interpretation In his dissenting- opinion in Burnet v. Coronado Oil
& Gas Co., 285 U. S. 412-13 (1931).

75 12 Howard, 443 (1851).

76 The Thomas Jefferson, 10 Wheaton, 428 (1825) and The Steamboat Orleans
v. Phoebus, II Peters, 175 (1837).

77 Mr. Justice Brandeis arguing against the application of the rule of stare
decisis in his dissenting opinion in State of Washington v. W. C. Dawson & Co.>
264 U. S. 238, 239 (1924) said, "The existing admiralty jurisdiction rests, in
large part, upon like action of the Court in The Genesee Chief, ... In that case
... a doctrine declared by Mr. Justice Story with the concurrence of Chief Justice
Marshall, and approved by Chancellor Kent, was abandoned when found to be
erroneous, although it had been acted on for twenty-six years."

62 ROGER B. TANEY

constitutional question if it is convinced that error in principle
might supervene." 78 This is a principle which is essential to
constitutional government.

It should not be inferred from what has been said that
Taney was lacking in regard for the fundamental principles
of the common law. On the contrary he held them in great
respect. He regarded the common law as part of American
law when adopted by the national or State governments. 79
As such it was subject to change by the legislature. 80 As a
jurist he followed the rules of the common law for the con-
struction of statutes except, as in the Genesee Chief case, when
there was something about the American situation which
made them inapplicable. 81

78 Pollock v. Farmers' Loan and Trust Co., 157 U. S. 576 (1894.). Other de-
cisions in which the Genesee Chief decision has been quoted in regard to the rule
of stare decisis are: Brickhouse et al. v. Hill, 167 Ark., 520; 268 S. W. 867
(1925)5 State v. Lewis, 6g Ohio State, 208-9; 69 N. E. 134 (1903); Prall v.
Burckhartt, 299 111., 405 132 N. E. 288 (1921)5 State v. Savidge, 144 Wash.,
310; 258 Pac. 4 (1927).

79 On one occasion he said, referring to the jurisdiction of the Supreme Court,
"But we cannot derive it from the common law. For it has been settled, since the
beginning of this government, that the courts of the United States as such, have no
common-law jurisdiction, civil or criminal, unless conferred upon them by act of
Congress. It is true that the courts of the United States, when sitting in a State,
administer the common law, where it has been adopted by the State. But it is
administered as the law of the State, under the authority and direction of the act
of Congress, which makes the laws of the State the rule of decision in a court of
the United States, when sitting in the State, provided such laws are not contrary
to the Constitution, laws, or treaties, of the United States." Pennsylvania v.
Wheeling Bridge Co., 13 Howard, 580 (1851). Dissenting opinion.

80 "But in many of the states and territories, the ancient common-law remedy
for the purpose of obtaining an allotment of dower, as well as the remedies for
other mere legal rights, have been changed for others more convenient and suitable
to our situation and habits. Yet they are regarded as cases at law, although they
are not carried on according to the forms of the common law." Parish v. Ellis, 16
Peters, 453 (1842).

81 In the Charles River Bridge decision, after quoting from an English decision,
he said, "Borrowing, as we have done, our system of jurisprudence from the Eng-
lish law; and having adopted in every other case, civil and criminal, its rules for
the construction of statutes; is there anything in our local situation, or in the
nature of our political Institutions, which should lead us to depart from the
principle where corporations are concerned?" Charles River Bridge v. Warren^
Bridge, ii Peters, 545 (1837).

THE SOVEREIGN WILL 63

The respect in which Taney held the essential principles
of the common law is revealed in a letter which he wrote to
a friend in 1854. in regard to proposed law reforms in Mary-
land. In the letter he said:

I am sensible, indeed, that there are many more forms and tech-
nicalities in common law proceedings which the Courts ought to
have reformed long ago. The power has been given to themj}y
the Legislature to give judgmenPaccor3mg to w the ngt&^of jtb
mattef," "without regard to matters of form; and yet they have
obstinately '""{I must say) continued to treat as a matter of sub-
stance what_evTdeHtIy" was nothing but form, merely because it was
, called substance in some of the old law books. I fear they will
continue to do so, without some specific direction from the Legis-
lature. But when that direction is given, it will require the
greatest care and consideration to preserve all that is really essential
to the common law and trial by jury, and dispense with every-
thing else. . . . But to do this by legislation, and yet preserve in
full vigor and usefulness the great principles of the common law
and trial by jury (without which, in my judgment, no free gov-
ernment can long exist), will require much reflection and care in
matters of detail, and great perspicuity in language. 82

Regarding substance as much more important than form,
he was yet aware that the common law, as Coke had put it,
"hath been fined and refined by an infinite number of grave
and learned men." 83 This attitude and its influence on his
decisions gives Taney continuity with the past. His willing-
ness to change rules of interpretation which no longer served
the ends of justice,, and his acknowledgment that the law in
America rested on its adoption by the representatives of the
sovereign people and could be changed Jby, them, leaves the
"way open for progress and gives him continujty with the
future.

83 Tyler, op. cit., p. 333.

83 J. H. Thomas, Systematic Arrangement of Lord Coke's First Institute of the
Laws of England, I, I.

64- ROGER B. TANEY

Conclusion

In concluding this chapter on Taney's conception of the sov-
ereign will, it may be wise to state concisely certain basic
features of his theory. So far as we may learn from his ex-
pressions he regarded the sovereign as absolute except for
self-imposed limitations. Realizing that the sovereign people
in the United States cannot speak with the same loquacity
arid directness on every occasion as might the sovereign king
of a petty principality, he goes to the Constitution for "the
supreme law., and regards it as the only direct expression of
the sovereign will.^ The government is the delegated agent
of the sovereign in the everyday affairs of the state and its acts
are to be regarded as the acts of the sovereign as long as they
are constitutional. The laws of Congress are binding because
they are made so by the Constitution, but only when Jthe^y
harmonize with its provisions. The Supreme Court as the
interpreter, of the sovereign will must find its authority in the
Constitution as written, and not in their own precedents or
the forms of the common law.

IV

THE SOVEREIGN POWER MUST NOT BE
LIMITED BY GROUPS WITHIN
THE STATE

The "Democratic Movement in America

TANEY BELIEVED whole-heartedly in the sovereignty of the
citizens who compose the state and regarded it as a matter of
the utmost importance that the control of the government
should not slip from their hands. In the United States of
his time men no longer feared the establishment of mon-
archical institutions. The danger to popular sovereignty
seemed to lie in political control by a privileged economic
class. Years before, Rousseau had declared that when an
association within the state becomes "so great as to prevail
over all the rest . . . there is no longer a general will, and
the opinion which prevails is purely particular." 1 In other
words the acts of the state are made to serve the interests of
the dominant class. As a political leader Taney was alert to
prevent the development of any such power which would
threaten the control of the whole American people over their
government.

The democratic movement has made itself felt in re-
surgent waves in American history. Jeffersonian democracy,
the Jacksonian revolution, and the liberalism of the early
twentieth century were based on principles of government
which were fundamentally alike. In a sense they were re-
current phases of the same movement. As one of the cham-
pions of popular control of the government in action, Taney's
views are similar to those of the other democratic leaders in
the line which extends from Jefferson to Bryan and La

1 The Social Contract, Book 2, Chap. 3, pp. 25-26.

[65]

66 ROGER B. TANEY

Follette and Wilson. In this phase of his political thought
he is particularly American in his viewpoint. 2

In each phase o the democratic movement the leaders of
democracy have fought against the political dominance of a
powerful economic class. The struggle was dramatized in
the Jackson administration in the contest over the attempted
recharter of the Bank of the United States and the discon-
tinuance of government deposits in it. As one of the influen-
tial leaders in Jacksonian democracy Taney played an im-
portant part in this contest 3 and was one of the President's
most aggressive advisers.

From the first cabinet meeting in which the Bank was
discussed after he became Attorney General 4 until he left the
cabinet Taney exerted his influence against the recharter of
the Bank. Neither the friends nor the enemies of the Bank
were long in doubt as to his position. 5 When Congress

2 This is not meant to Imply that there have not been similar contests in other
countries. It is simply that Taney's ideas and their background are typically Amer-
ican. He is one of the leaders of the democratic movement, largely agrarian,
which from the time of Jefferson to our own time has opposed the dominance of
big business Interests.

3 "Taney was Jackson's chief reliance for arguments justifying the removal
of the deposits, and his opinions on that subject are important." Correspondence
of Andrew Jackson, V, 33 note.

4 Taney left an Interesting discussion of the Bank struggle which Is now In the
Library of Congress in manuscript form. In it he says that the first meeting of
the new cabinet in which the Bank was discussed was held just before Jackson sent
his annual message to Congress In December, 1831. When the message was read
to the cabinet Taney objected to the equivocal manner in which Jackson handled
the subject of the Bank. He says, "It was my first conflict in the cabinet. I
stood alone in it; and in opposition to Mr. Livingston & Mr. McLane who were
experienced politicians, & in both of whom I knew that the President at that time
reposed the highest confidence." He failed to win Jackson to his viewpoint, and
he says, "I left the Cabinet meeting when it had broken up ... with strange
doubts also whether under the influence of his new advisers he would not be
persuaded to consent to the recharter of the bank. ..." Manuscript, pp. 73, 87.

5 C. C. Cambreleng, Jackson's leader in the House of Representatives wrote in
January 1832 that Taney was with the most ardent Democratic leaders in the
Bank struggle. J, S. Bassett, The Life of Andrew Jackson*, p. 612. For reports
of Taney's opposition to the Bank by the lobbyist of the Bank see R. C. McGranej
The Correspondence of Nicholas Kiddle, pp. i$o, 183.

THE SOVEREIGN POWER 67

heeded the request of the Bank and provided for its re-
charter Taney urged that the bill be vetoed. 6 Later he urged
the discontinuance of government deposits in the Bank,
although its old charter had a few more years yet to run. 7
The reason for his relentless hostility to the Bank is to be
found in his belief that the issue involved was one of funda-
mental importance to the nature of the American political
system. The controversy, as he saw it, was between a group .

X^ . (wtJ ^,rf>Miw 1 j.^^ " * * * **^^- 1 * > *"' *"**'* *

of wealthy owners of corporate stock and the masses of the
people, and the control of the government was at stake. ^

Oligarchy against Democracy

That Taney regarded the Bank struggle as part of what Wil-
liam Jennings Bryan called the "world-wide, never-ending
contest between the beneficiaries of privilege and the unor-
ganized masses" 8 is evidenced most clearly in a speech which
he made after his retirement from the cabinet. In that speech
he said:

In, every period of the world, and in every nation, history is full
of examples of combinations among a jew individuals, to grasp all
power in their own hands, and wrest- it from the hands of the
many. The invaluable blessing of self-government has never yet
been obtained by any nation, without a severe struggle and many
sacrifices and when the blessing has once been obtained, constant
vigilance has been necessary to preserve it. 9

Popular sovereignty, in this view, is not a God-given the-
oretical inheritance of mankind, but a prize which is won by
struggle and maintained by vigilance. Taney may have had
in mind the achievement of English liberty when he ex-
pressed this conviction, for it is a natural view for one well
versed in the development of English legal institutions.

6 Taney was in Annapolis at the time. He wrote the President a long letter
advising the veto. Sterner, op. cit*, p. 107.

7 Correspondence of Andrew Jackson, V, 33-41. Tyler, op. cit. t pp. 195-98.
8 W. J. Bryan, A Tale of Two Conventions, p. 27.

9 Daily Albany Argus 3 August 29, 1834.

68 ROGER B. TANEY

It seemed to Taney that the American people in the
struggle with the Bank were facing for the first time an issue
which had long confronted the older nations of the world.
"It is shall the power of the government be exclusively in
the hands of the great money holders, or shall it continue
where the constitution has placed it, in the hands of a free and
enlightened people. These opposing principles have long
agitated the countries of Europe, and now we are doomed to
meet here the struggle between them." 10 He sees in the
struggle an issue vastly more important than a conflict be-
tween political parties. It is a struggle for sovereignty be-
tween an economic class on one hand and the whole people
on the other. He says, "Now for the first time the issue is
made up, and the question boldly and distinctly presented to*
us, whether this noble country is to be governed by the power
of money in the hands of the few, or by the free and un-
bought suffrages of a majority of the people. It is a new ques-
tion. ,. .It has nothing to do with the ancient or modern
divisions -$ paities," 11

Taney was not the only one of the Jackson leaders who
saw the issue of popular sovereignty involved in the contest

10 ibid.
*ibid.

Confronted by still larger combinations of wealth Robert M. LaFollette said in
1912, "The great Issue before the American people to-day is the control of their
own government. In the midst of political struggle, it is not easy to see the his-
torical relations of the present Progressive movement. But it represents a conflict
as old as the history of man the fight to maintain human liberty, the right of
all the people.

"A mighty power has been builded up in this country in recent years, so strong
. . . that men are gravely inquiring whether its iron grip on government and
business can ever be broken. ... It rules in the organization of legislative bodies,
state and national, and of the committees which frame legislation. Its influence is
felt in cabinets and in the policies of administrations, and is clearly seen in the
appointment of prosecuting officers and the selection of judges upon the Bench.

"And this THING has grown up in a country where, under the Constitution
and the law, the citizen is sovereign!" Speech at the Banquet of the Periodical
Publishers' Association, February 2, 1912. LaFollette* s Auto bio graphy, pp. 763-64.
Quoted by permission of the Progressive Publishing Co.

THE SOVEREIGN POWER 69

with the Bank, although he seems to have stressed it more
than his associates did. But Thomas Hart Benton objected
to the recharter because he thought the Bank would "draw
to itself too much of the political power of this Union. . . ," 12
The Globe, newspaper organ of the Jackson administration,
said editorially, "We doubt exceedingly whether the agricul-
tural people of the United States, will consent to the re-estab-
lishment of this institution, which overshadows with its influ-
ence the authorities which spring from their own suffrages." 13
Thus, there seems to have been a general feeling among the
Jacksonians that an institution such as the Bank was incom-
patible with democracy.

To Taney the control of the state by a money power was
especially distasteful. It was, in his opinion, the worst kind
of government. Speaking to his friends and neighbors at
Frederick he said:

It was obvious to my mind . . . that a great moneyed cor-
poration, possessing a fearful power for good or for evil, had
entered into the field of political warfare, and was deliberately pre-
* paring its plans to Obtain, by means of its money, an irresistible
political influence in the affairs of the nation, so as to enable it to
control the measures of the Government. It was evident, if this
ambitious corporation should" succeed in its designs, that the liberties
of the country would soon be destroyed, that the power of self-
government would be wrested from the people, and they would
find themselves, at no distant day, under the dominion of the worst
of all possible governments a moneyed aristocracy. 14

Taney was opposed to participation in politics by "a great
monied corporation" even though its own interests were in-
volved. It was his conviction that "The right of such an

12 Speech of Mr. Benton of Missouri against the Renewal of the Charter of the
Sank of the United States in the Senate February 2, 1831, p. 6 (printed by Duff
Green, 1831).

18 September 21, 1831.

14 Tyler, op. cit., pp. 227-28.

7O ROGER B. TANEY

institution to interfere in the political concerns of the coun-
try, for any cause whatever, can never be recognized. . . ," 15
He was thinking of the conflict over sovereignty in terms of
the forces actually at work in the United States. The one
great corporation of the time, whose wealth overshadowed
that of any other single economic combination, was using its
power in politics to secure from the government a continua-
tion of the privileges which gave it the financial dominance
of American life. In an age when the privilege of voting
was being rapidly extended among the common people he
thought that if the Bank were allowed to exert itself con-
tinually in politics it would make American democracy merely
an empty form.

The Weapons of a Wealthy Class

On several occasions Taney discussed the means which a
money power could use, and which the Bank was using, to
gain control of the government. As he describes the power
of the weapons which lie at hand for the use of such a power,
one cannot help believing that the cause of popular sov-
ereignty must have seemed almost hopeless to him had he
not had a vast amount of confidence in "the intelligence and
patriotism of the people." 16

One of the most effective instruments for influencing
popular opinion in a large country is the control of the press.
Taney pointed to the Bank's influence over the press as one
of its dangerous weapons, and said, "The attempt of a great
monied institution like the Bank of the U. States to exercise
an influence over the press of the country by the mere power

15 Report on the Removal of Deposits, December 4., 1833, Public Documents
and Proceedings of the Twenty Third Congress } p. 23.

16 "But I sincerely believe that the purity of our institutions and the best in-
terests of the country call for prompt, firm and decisive measures on the part of
the Executive, and I rely for support on the intelligence and patriotism of the
people." Taney to Jackson, March, 1833, Correspondence of Andrew Jackson,
V, 41-

THE SOVEREIGN POWER 71

of money, is pregnant with so much evil that it cannot be too
severely and pointedly reprobated." 17 He saw in such a
course of action a serious threat to the purity of democratic
institutions.

Taney asserted that the Bank was using its money,
through control of the press and the issuance of pamphlets,
to destroy the political standing of the leaders who prevented
its gaining control of the government. 18 It seemed to him
that the Bank's methods of warfare were typical of those used
by moneyed classes generally when they sought control of
the government. They would go to any length to destroy
their enemies, the champions of popular sovereignty. After
alluding to the Bank's "unwearied perseverance" in its at-
tempts to destroy him "in the estimation of the citizens of the
United States" he declared, "No man who has at any period
of the world stood forth to maintain the liberties of the
people against a moneyed aristocracy grasping at power has
ever met with a different fate. Its unrelenting, unquenchable
hate has never failed to pursue him to the last hour of his
life, and when in his grave." 19

Taney was aware that political leaders were not the only

17 Ibid., p. 39-

18 Report on the Removal of Deposits, December 4, 1833, Public Documents
and Proceedings of the Twenty Third Congress, p. 23. The Bank's expenditure
for "printing not connected with the daily operations of the Bank" from 1829 to
1834, inclusive, was $65,268.91. To this should be added the expenditures of the
president of the Bank, who was authorized to spend money for propaganda purposes
on his own orders and for which no vouchers were required. Under this authority
between March u, 1831 and September 30, 1834, $27,155 was spent, in addition
to the sum mentioned above. The Bank's expenditures for printing were much
larger in the election years of 1832 and 1834, which led a Senate committee of
1834 that had investigated the Bank to say, "The augmented amount of expenditure
in the years 1832 and 1834 . . . taken in connexion with the circumstance, that
during those two years important elections were to take place, subjects it to the
charge, whether well or ill founded the Senate will determine, of a direct inter-
ference in elections from which it should most cautiously have abstained even in
appearance." Senate Doc. 17, 23d Cong. 2d Sess., (Dec. 18, 1834) pp. 44-4?-

TO Tyler, of. tit., p. 229.

72 ROGER B. TANEY

ones made to feel the weight o the displeasure of a wealthy
class which sought to control the government. Wealth brings
power which may be used by those who possess it to force
the common people into economic submission. Of the Bank
he said:

And it brings forward its demands in the spirit and temper,
which in all ages, has marked the moneyed aristocracy, when they
believed themselves strong enough to govern. It never appeals to
the high and generous feelings of the people. It must govern by
other means. If the poor laborer dare to think for himself, he is
contemptuously dismissed from his employment, and, with his
family, left to starve the debtor is pressed for money he is unable
to pay the trader, with but moderate means, is denied the usual
facilities necessary for the successful prosecution of his business. 20

He knew that economic slavery was incompatible with
political democracy. And in this instance he was pointing to
weapons which may be used by economic overlords with great
effect. Some years later in a letter to Jackson he expressed
the fear that the money power was irresistible in large com-
mercial cities. 21

Taney pointed out the fact that a corporation, because of
its nature, will tend to be more heartless in its actions than
will an individual. Corporation sinning enables the perpetra-
tors to escape without any acute consciousness of guilt. Re-
ferring to the Bank he said, "A corporation of the latter
description is constantly acting under the conviction of its
immense power . . . and is dealing also with the fortunes
and comforts of men who are distant from them and to whom
they are personally strangers. The Directors of the Bank
are not compelled to hear daily the complaints and witness
the sufferings of those who may be ruined by their proceed-
ings. From the nature of man such an institution cannot

20 Daily Albany Argus, August 29, 1834.

21 Charles Warren, The Supreme Court in United States History, II, 36-37.

THE SOVEREIGN POWER 73

always be expected to sympathize with the wants and feelings
of those who are affected by its policy." 22

A Group Which Threatens Popular Sovereignty is a
Public Enemy

Taney accused the Bank of bringing on a depression in order
to punish the people for the action of the government in
refusing to accede to its demands. In thus bringing suffering
to the people, it seemed to him that the Bank was just as
much an enemy of the United States as would have been a
foreign power with which the nation was at war. In char-
acterizing its action he said:

It determined to rely on its power, and redress itself. And like a
foreign enemy waging open war, it sought to alarm us into* sub-
mission by ostentatiously displaying its power, first at one point and
then another, and by the unsparing vengeance with which it
TlrougEt ruiiTin every place where" its" power could reach. It en-
deavored, by spreading dismay thro'out the nation, to break the
spirit of the people, and compel them to submit to its demands. It
sought to obtain from their sufferings and their fear, what it did
not hope would be yielded to their arguments and petitions.
When the Bank determined to pursue this course, in what respect
did its conduct and principle of action differ from that of an open
and avowed public enemy? 28

These statements show concisely and emphatically
Taney's attitude toward the Bank. He sees it as a powerful
group within the state a group which refuses to accept the
verdict of the government as final and attempts to force the
people to repudiate the work of their agents. In attempting

^Report on the Removal of Deposits, December 4, 1833, Public Documents
and. Proceedings of the Twenty Third Congress t p. 25.

Seventy-five years later E. A. Ross was to write, "The modern high-power
dealer of woe wears immaculate linen> carries a silk hat and a lighted cigar, sins
with a calm soul, leagues and months from the evil he causes." And "There is
nothing like distance to disinfect dividends." Sin and Society; pp. 10-11, 107.

23 Daily Albany Argus , August 29, 1834.

74- ROGER B. TANEY

this, it might as well declare war on the state, for it seeks
through the suffering of the people to destroy their sov-
ereignty. 24 It is the enemy of the state and to Taney the
enemy within the state is just as dangerous as the enemy
without the state.

The Government must serve only the Sovereign People
Taney discusses the importance of firm and independent ac-
tion on the part of the government when a powerful class
threatens the supremacy of the people. As Attorney General
he wrote to Jackson, "For if the measures of the Government
are to be influenced by the fear of its resentment or opposi-
tion, the time will soon come when its power must be en-
countered in some form or other, or the government be in
effect surrendered into the hands of the Bank." 25 In his
report to Congress on the discontinuance of government de-
posits in the Bank he called attention to the immense power
of the Bank and then said:

But I have not supposed that the course of the Government ought
to be regulated by the fear of the power of the Bank. If such

2 *The Bank used strenuous methods to accomplish its ends. From December
31, 1830 to May i, 1832 it increased its loans from $42,4.02,304.24 to $70,428,-
070.72. This was a $28,000,000 increase In sixteen months, and at a time when
the Bank's charter had only four more years to run. Report on the Removal of
Deposits, December 4, 1833, Public Documents and Proceedings of the Twenty
Third Congress } p. 22. The Bank applied for a recharter in January, 1832. Jack-
son vetoed the Congressional act providing for a recharter July 10, 1832. The
Bank began to contract its business in August, 1833. From the first of August,
1833 to the first of April, 1834 the total contraction was $13,000,000 out of $62,-
000,000. From August 1833 to September, 1834 the Bank increased its specie on
hand from $10,023,000 to $15,500,000. Most of this specie came from the collec-
tion of state bank balances, and forced the state banks to call in their paper. R. C.
H. Catterall, The Second Bank of the United States, pp. 321-24. Catterall, who is
on the whole favorable to the Bank says, "The enormous reductions made by the
bank were certainly In excess of any possible danger, and were continued long after
such danger threatened. The president and company of the Bank of the United
States were . . . not merely angry, but vindictive, and vindictive with calcula-
tion. They hoped to force a re-charter or at least a restoration of the deposits by
exercising a monetary pressure upon the country." Ibid., p. 329.

25 Correspondence of Andrew Jackson, V, 68.

THE SOVEREIGN POWER 75

a motive could be allowed to influence the legislation of Congress,
or the action of the Executive Departments of the Government,
there is an end to the sovereignty of the people, and the liberties
of the country are at once surrendered at the feet of a monied
corporation, . . . Will submission render such a corporation
more forbearing in its course? What law may it not hereafter
demand, that it will not, if it pleases, be able to enforce by the
same means? 26

This is a manifesto of independence for the government.
He recognizes that the government must be submissive only
to the sovereign. If the people cannot control it they are no
longer sovereign. The government must defy any special
interest within the state which seeks to dictate its actions. If
it does not, then a "particular will" and not the "general
will" will prevail.

Taney's -place in Jefersonian Democracy

In his attitude toward the Bank, and moneyed corporations
in general, Taney belongs to the school of Jefferson and John
Taylor, Jefferson and Taylor were agrarians who feared the
growth of great business interests and the influence of a
moneyed aristocracy in politics. Taylor asserted that "Enor-
mous political power invariably accumulates enormous wealth
and enormous wealth invariably accumulates enormous po-
litical power. Either constitutes a tyranny, because the ac-
quisitions of both are losses of liberty and property to na-
tions." 27 In 1803 Jefferson wrote of the Bank, "This institu-
tion is one of the most deadly hostility existing, against the
principles & form of our Constitution." And after expressing
a fear of the power that it might exercise in a time of crisis
he added, "I deem no government safe which is under the
vassalage of any self-constituted authorities, or any other

^Public Documents and Proceedings of the Twenty Third Congress, p, 25,
27 John Taylor, Tyranny Unmasked, p. 253.

76 ROGER B. TANEY

authority than that of the nation, or it's regular func-
tionaries." 28 Later, in 1816, he wrote, "I hope we shall take
warning . . . and crush in it's birth the aristocracy of our
monied corporations which dare already to challenge our gov-
ernment to a trial of strength and bid defiance to the laws of
our country." 29 Taney was not Jeffersonian in all of his
political philosophy, for he was not as thoroughly agrarian
as Jefferson, but in his distrust of a money power and his
jealous attitude toward the rights of the people when they
conflict with chartered privileges of corporations he follows
in the footsteps of the sage of Monticello-

The trust busters of the Theodore Roosevelt period be-
longed to this school of political thought. And Woodrow
Wilson, a little later, declared that the government must
control the banking system so as to prevent the concentration
of the nation's monetary resources in a few hands, 30 that
business must be freed from all forms of monopoly, 31 and
that the government must not allow any other organization
to become as strong as itself. 32 It is a school of thought that
seeks to maintain political equality in a world of economic
inequality, although it is aware that the two are hard to recon-
cile. It abhors oligarchy and seeks the preservation of actual
democracy.

The "Danger in Chartered Privileges

In the struggle with the Bank Taney revealed that he ob-
jected not only to its meddling in politics, but also to its
monopolistic features. He saw in huge chartered monopolies
a threat to the general welfare and to the power of the gov-

29 To Gallatin, December 13, 1803, The Writings of Thomas Jefferson, VIII,
284-85.

29 To George Logan, November 12, 1816, ibid., X, 69.

80 June 23, 1913, The New Democracy, I, 39-40.

81 March 8, 1913, ibid., p. 29.
^Ibid., II, 307-8.

THE SOVEREIGN POWER 77

ernment as well. Here again he was following in the path
of the Jeffersonians, for John Taylor had causticly declared,
"A crocodile has been worshipped, and its priesthood have
asserted, that morality required the people to suffer them-
selves to be eaten by the crocodile . . . ," and he added
"Law charters are a family of those crocodiles." 33

In Taney's report to Congress on the removal of deposits
he said that aside from the Bank's objectionable conduct, "It
cannot be supposed that the grant to this corporation of ex-
clusive privileges at the expense of the rest of the community,
for twenty years, can give it a right to still further enjoyment
of, its profitable monopoly." He declared further that he
was convinced that the existence of "such a powerful monied
monopoly" was dangerous to "the liberties of the people." 34

In the constitutional arguments which Taney wrote into
Jackson's veto message he voiced an opinion that Congress
had no power to grant monopolies, except in the case of
patents and copyrights where the power was specifically given
by the Constitution. To grant a chartered monopoly, it
seemed to him, was to limit the power of the government
in a way that it could not constitutionally be limited. After
referring to patents and copyrights he said, "On every other
subject which comes within the scope of Congressional power
there is an ever-living discretion in the use of proper means,
which can not be restricted or abolished without an amend-
ment of the Constitution." 35 It was his opinion that "It can
not be 'necessary* or 'proper* for Congress to barter away or
divest themselves of any of the powers vested in them by the
Constitution to be exercised for the public good." 36 Assum-
ing that Congress had the power to charter one bank, it had

83 John Taylor, An Inquiry into the Principles and Policy of the Government
of the United States, p. 69.

* Public Documents and Proceedings of the Twenty Third Congress , p. 16.
85 Richardson, op. cit., II, 584.
fcrf., pp. 583-84-

78 ROGER B. TANEY

the power to charter more than one. If one were necessary,
conditions might develop which would make another neces-
sary. Congress had no constitutional power to bind itself for
fifteen years not to charter other banks if they would serve
the general welfare. So ran his argument. 37

This attitude was reflected in a number of his judicial
decisions. The Constitution specifically protected the obliga-
tion of contracts, and under John Marshall's leadership this
provision had been strictly enforced. Taney recognized the
force of the constitutional provision, but whenever the power
of the government was at stake he construed a contract so
strictly that the government's power would be left unifn-
paired, unless the wording of the contract was so plain that
this could not be done. There were no chartered privileges
by implication so far as his decisions were concerned.

In the Charles River Bridge decision, 38 involving a case
where a State had chartered a toll bridge and later proposed
to allow the building only a short distance away of a com-
peting bridge, which would eventually become a free bridge,
Taney said he thought there could be no serious difficulty in
regard to the rule for the interpretation of the charter. "It
is the grant of certain franchises by the public to a private
corporation, and in a matter where the public is concerned.
The rule of construction in such cases is well settled, both in
England and by the decisions of our own tribunals." 39 After
quoting an English case which laid down the rule that am-
biguities in a charter were to be strictly construed against the
corporation and in favor of the public, he said he saw nothing
in America's local situation to make it wise to depart from
this rule. Then he added:

Ibid., pp. 583-84-

^Charles River Bridge v. Warren Bridge, n Peters, 420 (1837).

Ibid., 544-

THE SOVEREIGN POWER 79

We think not; and it would present a singular spectacle, if, while
the courts in England are restraining, within the strictest limits,
the spirit of monopoly . . . and confining corporations to the
privileges plainly given to them in their charter; the courts of this
country should be found enlarging these privileges by implication;
and construing a statute more unfavorably to the public, and to
the rights of the community, than would be done in a like case in
an English court of justice. 40

After referring to the public concern in the development
of transportation in the rapidly growing American nation he
said, "The whole community are interested in this inquiry,
and they have a right to require that the power of promoting
their comfort and convenience, and of advancing the public
prosperity, by providing safe, convenient, and cheap ways
for the transportation of produce and the purposes of travel,
shall not be construed to have been surrendered or diminished
by the State unless it shall appear by plain words that it was
intended to be done." 41

This principle of the strict construction of corporation
charters was reiterated in a later case where a canal company
claimed the privilege of charging toll for the use of its canal.
Referring to the argument of the corporation's lawyers that
it could demand compensation for the use of its property like
any other owner, Taney said, "The corporation has no rights
of property except those derived from the provisions of the
charter, nor can it exercise any powers over the property it
holds except those with which the charter has clothed it. It
holds the property only for the purposes for which it was
permitted to acquire it, that is, to effectuate the objects for
which the Legislature created it." 42 His attitude is plainly
that the corporation is the servant of the public.

He also declined to allow the surrender of sovereign

"ibid., 545-46* */&, 549-50.

42 Perrine v, Chesapeake and Delaware Canal Co., 9 Howard, 184 (1849).

80 ROGER B. TANEY

power by implication in cases involving corporate exemption
from taxation. In one such decision he said, "And neither
the right of taxation nor any other power of sovereignty
which the community have an interest in preserving, un-
diminished, will be held by the court to be surrendered,
unless the intention to surrender is manifested by words too
plain to be misunderstood." 43 While admitting that the
people might give their agents power to exempt corporations,
by contract, "from their equal share of taxes" he was sus-
picious that such contracts would turn out to be injurious
rather than beneficial to the public. 44 When corporations
claimed tax exemption by chartered grants before his Court,
they had to establish their rights beyond the shadow of a
doubt.

The Maintenance of the General Will

Henry D. Lloyd in 1894 called attention to the fact that it is
very easy for "those who want all the goods of government
charters, contracts, rulings, permits" to combine with place
hunting politicians, and that from such a union is likely to
come a formidable and unrestrained tyranny. 45 Taney was
keenly aware of the possibility of such a tyranny. His pro-
phylactic lay^ in the _ maintenance of ^actual popular^ sov-
ereignty and for this end eternal vigilance on the part of the^
people .was necessary. As an interpreter of the law he held
that the officers of the government could not contract away
any power which belonged to the sovereign without express"
constitutional authorization for such action. Where corpora-
tion charters were involved he was jealous to protect the
power of the sovereign people. As a politician he did not

43 Ohio Life Insurance and Trust Co. v. Debolt, 16 Howard, 4.35 (1853). See
also Philadelphia etc. R. Co. v. Maryland, 10 Howard, 392-93 (1850).

44 Ohio Life Insurance and Trust Co. v. Debolt, 16 Howard, 431 (1853).

45 H. D. Lloyd, Wealth Against Commonwealth, pp. 519-20,

THE SOVEREIGN POWER 8 1

intend to see the people surrender any aspect, of their sov-
ereignty without being warned beforehand^ and as an inter-
preter of the jtovereign will he did not intend to allow the
surrender of any portion of the sovereign power without a
clear expression of the sovereign will.

V
THE NATURE OF THE UNION

Sovereignty in the United- States

BECAUSE OF the conflict of interests between North and South,
the question of the nature of the federal Union and the loca-
tion of sovereignty in the United States was warmly discussed
throughout the period of Taney's public life. On the one
hand were those who believed that the Constitution of the
United States was a compact between the States which had
established it as sovereigns and remained sovereign as parties
to it. John C. Calhoun concisely expressed the theory of this
group when he said, "According to my conception, the whole
sovereignty is in the several States, while the exercise of
sovereign powers is divided. . . . )n On the other hand were
those who held with Mr. Justice Story that the Constitution
was established by, "The people of the United States, not the
distinct people of a 'particular state with the people of the
other states, 3 ' and that it was the irrevocable and supreme
law of the nation. 2 The latter group, although inclined to
stress the power of the nation, did not assign to it exclusive
sovereignty; They held that sovereignty was divided be-
tween the States and the nation. Webster expressed their
ideas in 1830 when he said, "The States are, unquestionably,
sovereign, so far as their sovereignty is not affected by this
supreme law. . . . The general government and the State
governments derive their authority from the same source.

1 Speech in the Senate in February 1833, The Works of John C. Calhoun, II,

233 ;

2 Joseph Story, Commentaries on the Constitution of the United States, 5th ed.,
Vol. I, Sec. 352, pp. 252-53. Webster said of the Constitution, ". . . it pronounces
that it is established by the people of the United States, in the aggregate." Re-
marks in the Senate January 27, 1830, The Works of Daniel Webster, III, 346.

[82]

THE NATURE OF THE UNION 83

. . . The national government possesses those powers which
it can be shown the people have conferred on it, and no
more." 3

Chief Justice Taney, into whose background had gone
Federalism, Jacksonianism, a Southern environment, and a
thorough study of the law does not belong wholly in either
group. Although he accepted the theory of divided sov-
ereignty he believed that the nature of the powers reserved
to the States and the safeguards for those powers embodied
in tHe Constitution were such as to make it unnecessary for
the States to fear that the national government would en-
croach upon their prerogatives. He was a constitutionalist.
He looked upon the national and"SFate governments as dif-
ferent parts of the political mechanism of our federal system
which would function smoothly if the provisions of the Con-
stitution were adhered to. In his judicial decisions he tried
to maintain the division of power established in^the^Co^titu^-
tion in order that each might function in its proper sphere.
In his scheme of things there was no necessity and no place
for a serious conflict between State and national governments
over power. Back of them both were the sovereign people
who had established them and written the Constitution.

The Sovereign States before the Adoption of the Constitution
Taney's approach to the question of the relation between the
States and the national government was by the historical
method. As did his great contemporary, John C. Calhoun,
he went back to the American Revolution and the events
which followed it to determine the nature of the Union, but
unlike Calhoun he held to the theory of divided sovereignty.
During the first period of American history under the Con-
stitution this theory had the weight of authority back of it, as
we shall see in discussing the background of Taney's theory.

3 Second Speech on Foote's Resolution, delivered In the Senate January 26,
1830 in ibid., Ill, 321-22.

84 ROGER B. TANEY

Taney held that "when the revolution took place, the
people of each state became themselves sovereign. . . ," 4
The exigencies of the times brought them together under the
Articles of Confederation, but even after they had entered this
confederation for their mutual advantage and protection they
were still "thirteen separate, sovereign, independent States."
Their congress "was composed of representatives of these
separate sovereignties, meeting together as equals, to discuss
and decide on certain measures which the States, by the
Articles of Confederation, had agreed to submit to their de-
cision." This body had none of the attributes of sovereignty.
"It was little more than a congress of ambassadors, authorized
to represent separate nations in matters in which they had a
common concern." 5

This view of the position of the States in the pre-Constitu-
tion period was neither a new view nor necessarily a States'
rights view. Justice Samuel Chase had said in 1796 in Ware
v. Hylton y referring to the Declaration of Independence, "I
consider this a declaration, not that the United Colonies
jointly, in a collective capacity, were independent States, &c.,
but that each of them was a sovereign and independent State,
that is, each of them had a right to govern itself by its own

4 Martin v. Waddell, 16 Peters, 410 (1842) St. George Tucker wrote in 1803,
of the American colonies, "From the moment of the revolution they became
severally independent and sovereign states, possessing all the rights, jurisdictions,
and authority, that other sovereign states . . . possess j and bound by no ties but
of their own creation, except . . . the customary law of nations." Blackstone 3 s
Commentaries, Vol. i, Appendix, Note D, p. 150. On the other hand Mr. Justice
Story maintained that the Declaration of Independence did not find the colonies
sovereign or make them such, "but that at the moment of their separation they were
under the domain of a superior controlling national government whose powers
were vested in and exercised by the general Congress with the consent of the
people of all the States." Joseph Story, op. cit., Vol. I, Sec. 214..

8 Lred Scott v. Sandford, 19 Howard, 434 (1856) During the period of the
Confederation John Adams wrote in his Defense of the Constitutions of Govern-
ment of the United States of America ". . . congress is not a legislative assembly,
nor a representative assembly, but only a diplomatic assembly." The Works of
John Adam*) IV, 578.

THE NATURE OF THE UNION 85

authority and its own laws, without any control from any
other power upon earth." 6 And John Marshall, discussing
the political situation of the States before the adoption of the
Constitution said, in Gibbons v. Ogden, "It has been said that
they were sovereign, were completely independent, and were
connected with each other only by a league. This is true." 7
Thus we see that Taney, in proceeding on the assumption
that the States were individually sovereign before the forma-
tion of the Constitution, could appeal not only to the history
of the period, 8 but to judicial interpretation of it worthy of
the highest respect.

Divided Sovereignty Under the Constitution

In discussing the closer union formed under the Constitution,
Taney held that it was formed "by the -people of the United
States, that is to say, by those who were members of the
different political communities in the several States. . . ." 9
But the States kept their sovereignty. 10 Under the existing
system, "with the exception of the powers surrendered by the
Constitution of the United States, the people of the several
States are absolutely and unconditionally sovereign within

6 3 Dallas, 224. 7 9 Wheaton, 187 (1824).

8 Charles Warren in The Supreme Court and the Sovereign States gives some
interesting evidence on State sovereignty in this period. "Thus, Connecticut, in its
statute adopting a declaration of rights and privileges In 17765 declared itself a
'Republic* which 'shall forever be and remain a free, sovereign and independent
State'. ... In the treaty of peace, Great Britain acknowledged the United States,
naming each State separately to be 'free, sovereign and independent States'. . . .
The Pennsylvania Legislature recited in a statute of December 3, 1782, that
'whereas by the separation of the thirteen United States from Great Britain, the
Commonwealth of Pennsylvania hath become a sovereign and independent State,
and in consequence of such separation, a government established solely on the
authority of the people hath been formed.'" pp. 3-4.

In 1784 when New York and Vermont were on the point of war with each
other John Hancock, as Governor of Massachusetts, issued a proclamation of
neutrality. Pp. 11-12.

Dred Scott v. Sandford, 19 Howard, 410-11 (1856).

10 Kentucky v. Dennison, 24 Howard, IO2 (1860).

86 ROGER B. TANEY

their respective territories." 11 Although Taney spoke thus in
strong and broad terms of the reserved power of the States
he was aware that important powers had been surrendered to
the nation. On one occasion he referred to the "so large a
portion of their former sovereign powers" which was sur-
rendered by the States when the Constitution was adopted. 12
He regarded the Union established by the Constitution
as much more than another league of independent sovereign-
ties. In it the people of the several States were for certain
purposes one people. 13 The Constitution brought into being
a new political community. 14 All persons who were citizens
of the several States at the time the Constitution was adopted
were members of the new political community, but after its
adoption no State could admit new members. Only those
who were born into it or were admitted into it by the national
government could become citizens of the United States as a
nation. 15

Taney held that every person living within the boundaries
of a State is subject to two governments, the State government
and the national government. Both exercise powers of sov-
"ereignfy: " "Neiffier is subject to the other. His conception
'of the relation betweerTSie TW5 'Sovereignties is best expressed
in his decision in the case of Ableman v. Booth where he said:

And although the State of Wisconsin is sovereign within its terri-
torial limits to a certain extent, yet that sovereignty is limited and
restricted by the constitution of the United States. And the
powers of the general government, and of the State, although both
exist and are exercised within the same territorial limits, are yet
separate and distinct sovereignties, acting separately and inde-
pendently of each other, within their respective spheres. And the
sphere of action appropriated to the United States is as far beyond
the reach of the judicial process issued by a State judge or a State

11 Ohio Life Insurance and Trust Co. v. Debolt, 16 Howard, 428 (1853).

13 Dred Scott v. Sandford, 19 Howard, 438 (1856)0

13 Ibid., 435. M Ibid., 406. M Ibid.

THE NATURE OF THE UNION 87

court, as If the line of division was traced by landmarks and monu-
ments visible to the eye. 16

This is the classic statement of the theory of the two sov-
ereignties and it emphasizes their distinctness with unusual
force. The idea of divided sovereignty, however, was an old
one in Court decisions. In 1793 we find Mr. Justice Iredell
saying in Chisholm v. Georgia^ "The United States are sov-
ereign as to all the powers of government actually sur-
rendered: each State in the Union is sovereign as to all the
powers reserved." 17 And in 1819 Chief Justice Marshall
said in McCulloch v. Maryland, "In America, the powers of
sovereignty are divided between the government of the
Union, and those of the States. They are each sovereign,
with respect to the objects committed to it, and neither sov-
ereign with respect to the objects committed to the other." 18

The Supreme Court as Arbiter between the two Sovereignties

Taney saw the possibility of conflicts and disagreements in
such a system of two sovereignties in one country. The courts
of the States and of the national government would probably
disagree as to'ffie exCenfoF the power granted to the national
gQY^ernment. There was danger "that serious controversies
would arise between the authorities of the United States and
of the States, which must be settled by force of arms, unless
some tribunal was created to decide between them finally and
without appeal." 19 InjDrder to provide againstjthis danger
the jurisdiction of the federal courts was extended to jalLcases,,
arising under the Constitution and tie, Jaws,,, of the_United
States^^,Xheir jurisdiction thus extended to unconstitutional
as well as constitutional acts of Congress. The purpose of

16 21 Howard, 516 (1858).

1T 2 Dallas, 435. See also Chief Justice Jay's opinion in the same case, p. 4.71.

18 4 Wheaton, 410.

19 Ableman v. Booth> 21 Howard, 516 (1858).

88 ROGER B. TANEY

this provision was not only to maintain intact the sphere
of power granted to the federal government but also to pro-
tect the States from any encroachment of the national gov-
ernment on their reserved powers. As the Constitution was
the supreme law of the land it was their duty to declare an
act of Congress void if it was not within the limits of power
assigned to the national government. 20

.Taney. -thought that the Supreme Court ^was singularly
fitted to act as arbiter in cases involving disagreements over
the^diyision of powers between the two sovereignties. He
said:

It was not left to congress to create it by law; for the States could
hardly be expected to confide in the impartiality of a tribunal
created exclusively by the general government, without any par-
ticipation on their part. And as the performance of its duty would
sometimes come in conflict with individual ambition or interests,
and powerful political combinations, an act of congress establishing
such a tribunal might be repealed in order to establish another
more subservient to the predominant political influences of excited
passions of the day. TJbisjriJiunalj therefore, was erected and the
powers of which we have spoken conferred uporTltpnoFljjnElie
federal ^government, but by tne people of the States, who formed
and adopted that government, and conferred upon it all the powers
. . . which it now possesses. ... So long, therefore, as this con-
stitution shall endure, this tribunal must exist with it, deciding in_
the peaceful forms of judicial proceeding the angry and irritating
con tFoTEtsies"b r ef ween sovereignties, 'Which in" other countries Have
been x determined by the arbitrament of force. 21 "

This is Taney's view of the Supreme Court as an impartial
arbiter, acting as the agent of the sovereign people, maintain-
ing the division of powers between two sovereignties existing
in the same country. 22 Such an authority was logically neces-

20 Ibid.) 520. ^ Ibid. t 521.

23 Contrast with the States' rights view as expressed by Abel P. Upshur. Speak-
ing of cases before the federal courts he said, "If the decision should be against

THE NATURE OF THE UNION 89

sary to the believer In divided sovereignty. Taney's discussion
of the Court in this capacity is similar to the opinion ex-
pressed by Madison when the Constitution was before the
people for ratification. In the Federalist he wrote:

It is true, that in controversies relating to the boundary between
the two jurisdictions, the tribunal which is ultimately to decide, is
to be established under the General Government. But this does
not change the principle of the case. The decision is to be im-
partially made, according to the rules of the Constitution; and all
the usual and most effectual precautions are taken to secure this
impartiality. Some such tribunal is clearly essential to prevent an
appeal to the sword, and a dissolution of the compact; and that it
ought to be established under the General, rather than under the
local Governments . . . is a position not likely to be combated. 23

The Constitution as the Supreme Law

In Taney's system a State government and the national gov-
ernment are each supreme in its own sphere, and their powers
are distinct, but the relation between the two is not the rela-
tion of separate nations to each other. "For all the great
purposes for which the federal government was formed, we
are one people, with one common country." 2 * ^J Consti-
tution is the supreme law for both State and f ederal govern-
zJGfint. "TheHCJonsTir^^ is as much a

part of the law of Pennsylvania as its own Constitution, and

the citizen, his only relief is by an appeal to his own State. He is under no
obligation to submit to federal decisions at all, except so far only as his own
State has commanded him to do so; and he has, therefore, a perfect right to ask
his State whether her commands extend to the particular case or not. . . . His
State may Interpose in his favor or not, as she may think proper. If ... she
does, then it is no longer a judicial question. The question is then between new
parties . . . between a sovereign State and its own agent; between a State and
the United States. As between these parties the federal tribunals have no jurisdic-
tion, there is no longer a common umpire to whom the controversy can be re-
ferred." A Brief Enquiry into the True Nature and Character of Our Federal
Government, pp. 86-87 (1863). Originally published in 1840.

^Number 38, The Foederalist, p. 265.

^Passenger Cases, 7 Howard, 492 (1848). Dissenting opinion.

9O ROGER B. TANEY

the laws passed by the General Government pursuant to the
Constitution are as obligatory upon the courts of the States
as upon those of the United States 5 and they are equally
bound to respect and uphold the acts and process of the courts
of the United States, when acting within the scope of its
legitimate authority." 25 The sovereign people have simply
divided the powers of government into two great sections and
delegated them to their agents in the manner prescribed in
the Constitution. 26 By this division certain powers were given
to the federal government, and all others were reserved by
the States.

Taney believed that the relation between the States and
the national government should be one of cooperation. The
States possessed powers which might be used to embarrass the
national government but the good sense of the people would
prevent the pursuit of such a policy. If the national and State
governments should ever embark on a contest of "trying
which shall do the other the most harm" it would mark the
end of the Union. "The Union cannot be preserved by the
mere strength and power of the federal government. It is
dissolved as soon as it shall forfeit the affection and confidence
of the states." 27

In his decision in the case of Ableman v. Eooth^ Taney
called attention to the fact that the Constitution was not
forced on the States. Each State entered the Union by a
purely voluntary act of its people. And he said, "Nor can it
be inconsistent with the dignity of a sovereign State to observe
faithfully, and in the spirit of sincerity and truth, the compact
into which it voluntarily entered when it became a State of
this Union. On the contrary, the highest honor of sov-

25 Taylor et aL v. Carryl, 20 Howard, 605 (1857). Dissenting opinion.
20 Fleming et aL v. Page, 9 Howard, 617-18 (1849).

27 From the argument of Taney and Reverdy Johnson, counsel for Maryland,
in Brown v, Maryland, 12 Wheaton, 4.19 (1827).

28 21 Howard, 506 (1858).

THE NATURE OF THE UNION 91

ereignty is untarnished faith." 29 Then he added a statement
of vital significance: "And certainly no faith could be more
deliberately and solemnly pledged than that which every
State has plighted to the other States to support the constitu-
tion as it is, in all its provisions, until they shall be altered
in the manner which the constitution itself prescribes." 30 If
this was the correct theory of the Union there could be no
nullification or secession by a State unless it broke faith with
the other States with which it was joined in the Union. Every
provision of the Constitution was binding on every State until
changed by the regular method of constitutional amendment.

Taney did not belong to the States* Rights School

In looking for connections between Taney's conception of the
nature of the Union and the theories of other political leaders
who preceded him or were his contemporaries^ one does not
have to go far to discover that he did not belong to the States 3
rights school of Jefferson and John Taylor. Jefferson wrote in
the Kentucky Resolutions that the Constitution of the United
States was a compact and "as in all other cases a compact
among powers having no common judge, each state has an
equal right to judge for itself, as well as of infractions as of
the mode and measure of redress." 31 And John Taylor in a
discussion of the Union under the Constitution wrote, "But

^Compare with Vattel, The Law of Nations, p. 18, Sec. 10, "In short, several
sovereign and independent states may unite themselves together by a perpetual
confederacy, without each in particular ceasing to be a perfect state. ... A person
does not cease to be free and independent, when he is obliged to fulfil the en-
gagements into which he has very willingly entered."

80 21 Howard, 525.

31 The Writings of Thomas Jefferson, VII, 292. It should be remembered that
Jefferson was not as radical in action as he was in theory. This is illustrated in a
letter which he wrote to John Taylor after Taylor had hinted at the secession of
Virginia and North Carolina. In his letter Jefferson said, "But if on a temporary
superiority of one party, the other is to resort to a scission of the Union, no fed-
eral government can ever exist. ... A little patience, and we shall see the reign
of witches pass over . . . and the people recovering their true sight, restoring
their government to its true principles." June I, 1798, in ibtd* 9 pp.

92 ROGER B. TANEY

the union possesses no innate sovereignty, like the states ; it
was not self-constituted 3 it is conventional, and of course
subordinate to the sovereignties by which it was formed." 32

Jeffersonian theory is thus seen to assign to the national
government a position definitely subordinate to that of the
States. One should not forget that Taney was a leader of the
Federalists in Maryland in the period when the Republican
party was Jefferson's, or that he broke with the New England
leaders of his own party when they enunciated nullification
doctrines and hinted at secession in the closing days of the
War of 1812. In comparison with the Jeffersonians and the
Hartford Federalists, Taney is a nationalist. He maintains
the independence of the national government, the authority
of the Supreme Court to interpret national laws, and the
permanence of the constitutional Union. 33

There is no place in Taney's scheme for nullification or
secession. He considers the State and national constitutions
*as resting on the same basis, and the State and national gov- '
ernments as entitled to the same respect. Sovejeigntj/^rests
in the pjeople, who act in one capacity as members of the
political body called the State and in another csLp^SEy^s^SSm^
bers of the larger political body,, ,&

State and national governments operate over a common ter-
ritory, but for separate and distinct purposes. 35 In his de-
cisions he sought to maintain intact the sphere of power which
constitutionally belonged to each sovereignty.

Among the States 5 rights leaders who were Taney's con-
temporaries, John C. Calhoun was the outstanding political
thinker. When his ideas are contrasted with Taney's, points
of sharp disagreement are easily noticeable. It seemed to
Calhoun that sovereignty could not be divided. "Sovereignty

32 New Views of the Constitution of the United States, p. 37.

33 Notably In Ableman v. Sooth) 21 Howard, 506 (1858).

34 See Dred Scott v. Sandford, 19 Howard, 393 (1856).
** Ableman v. Booth, 21 Howard, 516 (1858).

THE NATURE OF THE UNION 93

is an entire thing, to divide, is, to destroy it." 36 He found
it in the American system residing "unimpaired in the people
of the several states. . . ." 3T The several States in their
sovereign capacity, having ratified the Constitution by mutual
agreement, stand in relation to it as the parties to a constitu-
tional compact. As parties to the compact they retain the
right to judge the extent of the obligations imposed by the
compact, and may interpose to arrest within their respective
limits an act of the federal government in violation of the
Constitution and thus to prevent the delegated from en-
croaching on the reserved powers. 38 Calhoun argued that
there is nothing in the Constitution to indicate that the Su-
preme Court is authorized to enforce its judgments against a
State government in case of a conflict between State and
national powers. 39

Calhoun's successors to southern leadership followed him
in the main outlines of their thinking. 40 Taney differs from
them, as from Calhoun, in regard to the completeness of State
sovereignty, and in regard to the method of maintaining the
division between the powers of the national and State govern-
ments.

The Antecedents of Taney's Theory

In looking for the antecedents of Taney's theory of the nature
of the Union we find that his ideas are very similar to those
advanced by James Madison in number thirty-eight of the
Federalist papers. The Federalist explained that the Union
is partly federal and partly national. Ratification of the Con-
stitution was to be by the people acting "not as individuals
composing one entire Nation, but as composing the distinct

86 The Works of John C. Calhoun, I, 146. ^ Ibid., p. 147.

38 Ibid., pp. 277-78. "Ibid., pp. 258-65.

40 See A. H. Stephens, A, Constitutional View of the Late War between the
States, Vol. Ij Jefferson Davis, The Rise and Fall of the Confederate Government;
Vol. I.

94 ROGER B. TANEY

and independent States to which they respectively belong." 41
In ratifying the Constitution each State acts as a sovereign
body and is bound only by its own voluntary act. In this re-
spect the government is federal, but the new government
operates on the people rather than on the States, and in that
respect it is national. 42 The power of the general govern-
ment is limited to certain enumerated objects, and the States
are left a residuary sovereignty over all other matters. 43

That Madison's theory of the Union was almost exactly
the same as Taney's seems indicated by opinions expressed in
a letter which he wrote to Edward Everett in 1830. In the
course of his letter, after discussing the formation of the
Federal Constitution, Madison said:

Being thus derived from the same source as the Constitutions
of the States, it has within each State, the same authority as the
Constitution of the State; and is as much a Constitution, in the
strict sense of the term, within its prescribed sphere, as the Consti-
tutions of the States are within their respective spheres; but with
this obvious & essential difference, that being a compact among the
States in their highest sovereign capacity, and constituting the
people thereof one people for certain purposes, it cannot be altered
or annulled at the will of the States individually, as the Constitu-
tion of a State may be at its individual will. 44

Some of the ideas stated by James Wilson in the Pennsyl-
vania convention which ratified the Constitution also bear a
similarity to those later expressed by Taney. Wilson said
that the proposed general government would take away
power from the States in certain particulars, but that this
should not prove alarming since the people are the source of
all power. They can give one portion of power to the State
governments and another to the government of the United

^The Foederalist, p. 262. 42 Ibid., p. 264. * Ibid., p. 265.

** The Writings of James Madison^ IX, 386-87. President Monroe expressed
similar ideas in his veto message of May 4, 1822. Richardson, II, 147-48.

THE NATURE OF THE UNION 95

States. 45 In regard to the possibility of disputes between the
States and the national government over the boundary lines
of power he said, "I hope, sir, they will not . . . resemble
comets in conflicting orbits, mutually operating destruction 5
but that their motion will be better represented by that of
the planetary system, where each part moves harmoniously
within its proper sphere, and no injury arises by interference
or opposition. Every part, I trust, will be considered as a
part of the United States." 46

In the course of the discussion of Taney's theory we have
already noticed that there is a likeness between his ideas and
those of John Marshall. In the broad outlines of their the-
ory of the nature of the Union there is much similarity.
However, Marshall did not always use the term sovereignty
in the same sense in which Taney used it, and it is doubtful
if he had quite the clear conception of two sovereign bodies
of people that Taney had. When Taney^ speaks, of , the State
as being sovereign he always means the 'people of the State,
not its government. When he refers to the sovereignty of
the nation he is thinking of the whole people. That Mar-
shall had something of this idea might be implied from his
statement in Sturges v. Crowninshield, referring to the powers
of the States, "These powers proceed, not from the people
of America, but from the people of the several States 5 and
remain, after the adoption of the constitution, what they were
before, except so far as they may be abridged by that instru-
ment." 47 E^^^^^g the same term of Court we jind
him in, M^Cullo&h v. MwyUnd talJaagf 'of sovereignty in
terms of the powers of governments, and arguing that the
Constitutioa^TOS^lEe product "of ffiFEep^eiTanJ^nSt of the
State governments, 48 a proposition which the leading thinkers

^Elliott, op. cit., II, 443-44- ^/^-/PP- 4$*-^ : m 4 WRfSterirrT9T T <T^l"g):
48 After telling of the ratification by State conventions he says, "But the meas-
ures they adopt do not on that account, cease to be the measures of the people
themselves, or become the measures of the State governments." 4 Wheaton, 403.

96 ROGEI

among the most radical of tlie State J rights leaders would

not deny.

Mr. Justice Story,, in his Comm&n&aries on the Constitu-
tlon y distinguishes between the different uses of the term sov-
ereignty and says, "Strictly speaking^ L& our republican forms
of government the absolute sovereignty of the nation is in the
people of the nation 5 and the residuary sovereignty of each
State, not granted to any of its public functionaries, is in the
people of the State." 49 This would &eem to indicate that his
conception of the location of sovereign ty in the United States
was very much the same as the theory which Taney wrote
into his decisions.

It is evident that the roots of Tansy's theory of the nature
of the Union lie, not in the theory of Jefferson or Taylor or
Calhoun, but in the -writings of Madison, the ideas of James
Wilson, and the previous decisions of the Supreme Court. In
an age of conflict between States 5 rights advocates and the
advocates of a new nationalism, when the bifurcate theory of
sovereignty was becoming- progressiwely harder to apply,
Taney clung to the doctrine of the Fathers of the Constitu-
tion.

The Power of the National

A discussion of Taney's conception o:f the Union and the di-
vision of sovereignty in the United States is not complete
without some notice of the leading cases in which he applied
his theory. His decisions in. cases imrolving specific powers
of the national and State governments are as revealing of his
theory as are his general statements, It is only after an
examination of such decisions that ome can satisfactorily com-
pare him with John Marshall or tl& other great jurists who
have dealt significantly with the satnae problem.

Where the power of the national, government was in ques-

49 Sec. 208.

THE NATURE OF THE UNION 97

tion Taney gave it such an ample interpretation and such
freedom from all except clearly constitutional restraints as to
give him good claim to be called a nationalist. An important
decision of this nature was the one which he wrote in the case
of Holmes v. Jennlson^ a case involving the intercourse be-
tween the United States and foreign nations. In it he said,
"It was one of the main objects of the constitution to make
us, so far as regarded our foreign relations, one people, and
one nation, and to cut off all communications between foreign
governments and the several state authorities." 51 He denied
the right of a State to extradite a person to a foreign nation,
with the assertion that "The constitution looked to the essence
and substance of things, and not to mere form." 52 He as-
signed exclusive power in such matters to the national govern-
ment, saying:

But if there was no prohibition to the states, yet the exercise of
such a power on their part is inconsistent with the power upon the
same subject conferred on the United States. It is admitted, that
an affirmative grant of a power to the general government, is not,
of itself, a prohibition of the same power to the states; and that
there are subjects over which the federal and state governments
exercise concurrent jurisdiction. But where an authority is
granted to the Union, to which a similar authority in the states
would be absolutely and totally contradictory and repugnant, there
the authority to the federal government is necessarily exclusive;
and the same power cannot be constitutionally exercised by the
states. 53

In this decision Taney assumes that the national govern-
ment has exclusive power and the States are deprived of
power by implication wherever State action would be incom-
patible with a grant of power to the national government.
Chief Justice Marshall laid down a similar rule in Stwges v.

50 14 Peters, $40 (1840). n Ibid., 575-

52 Ibid., 573- */*., 574-

98 ROGER B. TANEY

Crowninshieldy a case involving bankruptcy laws, when he
said, "Whenever the terms in which a power is granted to con-
gress, or the nature of the power, require that it should be
exercised exclusively by congress, the subject is as completely
taken from the state legislatures, as if they had been ex-
pressly forbidden to act on it." 54

Taney's decision in Holmes v. Jennison strengthened the
national government and set limits to State power to such an
extent that James Buchanan said of it, "I have always enter-
tained the highest respect for the present distinguished Chief
Justice of the United States j but I must say, and I am sorry
in my very heart to say it, that some portions of his opinion,
in this case, are latitudinous and centralizing, beyond any-
thing I have ever read in any other judicial opinion." 55

Taney believed that the central government not only had
certain powers delegated "to it, but that it " hacf the" "right to"
execute these powers, by force if necessary". In]sjj.MAman m
v. 50o/Ajiecision he strongly defended the right of the cen-
tral government ..to enforce its laws and judicial processes free
from State interference. If a State attempted to interfere
with the action of a federal officer in holding in custody per-
sons accused of violating federal laws it would be the officer's
duty "to call to his aid any force that might be necessary to
maintain the authority of law against illegal interference." 56
In his scheme of things the national government need brook
no interference with the exercise of its constitutionally
granted powers. 57

Taney's nationalistic proclivities are revealed most clearly

^4 Wheaton, 193 (1819). The Court applied a similar rule to interstate com-
merce in Cooley v. Board of Wardens of the Port, 12 Howard, 319 (1851).
Although Taney did not write the decision in the latter case he was apparently one
of the majority whose opinion it represented.

55 Congressional Globe, 27th Cong., 2d Sess., Appendix, p. 388.

50 21 Howard, 524 (1858).

67 See also Official Opinions of the Attorneys General, II (1825-1835), 565,
575-78.

THE NATURE OF THE UNION 99

in his opinions involving the jurisdiction and authority of the
federal courts, especially in his opinions in admiralty cases.
In the case of Taylor v. Carryl 58 involving a conflict of juris-
diction between State and federal courts, the majority of the
Supreme Court upheld the right of the State court to assume
jurisdiction. Taney dissented with a strong defense of the
supremacy of the federal courts in admiralty cases. After
admitting that the States are supreme within their sphere of
action and that national officers are powerless to interfere with
what they do in that sphere, he continued, "But if it is in-
tended to say that, in the administration of judicial power,
the tribunals of the States are to be regarded as the tribunals
of separate and independent sovereignties, dealing with each
in this respect upon the principles which govern the comity
of nations, I cannot assent to it. The Constitution of the
United States is as much a part of the law of Pennsylvania
as its own Constitution. . . . The State courts have not, and
cannot have, any jurisdiction in admiralty and maritime liens,
to bring them into conflict with the courts of the United
States." 59 Then he added, "The Constitution and laws of
the United States confer the entire admiralty and maritime
jurisdiction expressly upon the courts of the General Govern-
ment." 60

One of Taney's most important contributions to American
law was embodied in his decision "in the case vi&en&s&e Chief
'v. FitzAugJif 1 in which he interpreted admiralty jurisdiction
as extending over all navigable waters in the United States,
whether they were used for commerce between Stales' or" with
other nations.** 2 " Prior to this decision the boundary of ad-

58 20 Howard, 583 (1857). Ibid., 605.

* It>td., 606. 61 1 2 Howard, 443 (1851).

62 Mr. Justice Brandeis said of this decision, in connection with a discussion
of the desirability of disregarding the rule of stare decisis, "The existing admiralty
jurisdiction rests, in large part, upon like action of the Court in The Genesee
Chief, ... In that case ... a doctrine declared by Mr. Justice Story with the

100 ROGER B. TANEY

miralty jurisdiction had been measured by the tidewater, in
accordance with established English law.

Referring especially to the Great Lakes, and in answer to
the objection that they were not under maritime jurisdiction
because there was no tide on them, Taney said:

Now there is certainly nothing in the ebb and flow of the tide
that makes the waters peculiarly suitable for admiralty jurisdiction,
nor anything in the absence of a tide that renders it unfit. If it is
a public navigable water, on which commerce is carried on be-
tween different states or nations, the reason for the jurisdiction is
precisely the same. And if a distinction is made on that account,
it is merely arbitrary, without any foundation in reason; and,
indeed, it would seem to be inconsistent with it. 63

He called attention to the fact that tidewater and naviga-
ble waters had become synonymous terms in England because
in that country there are no navigable waters beyond the ebb
and flow of the tide. Because a similar situation existed in
the original thirteen States the courts had accepted the Eng-
lish definition. 64 "The description of a public navigable river
was substituted for the thing intended to be described." 65

Taney's Genesee Chief decision was one dictated by sound
common senseTTt extended" the 'power oF the federal govern-
ment 'to meet conditions as they existed, in accordance with
the spirit of the constitutional provision. Charles Warren is
probably right when he says that "Few decisions had ever
produced so revolutionary a change in Federal jurisdiction as
that of The Profellor Genesee Chief v. Fitzhugh . . .," 66

concurrence of Chief Justice Marshall, and approved by Chancellor Kent, was
abandoned when found to be erroneous, although it had been acted on for twenty-
six years." State of Washington v. W. C. Dazoson <? Co., 264 U. S. 238-39
(1924). Dissenting- opinion.

63 12 Howard, 454.

64 Mr. Justice Story applied the tidewater limitation rule in The Steamboat
Thomas Jefferson, IO Wheaton, 428 (1825).

65 12 Howard, 455.

68 Charles Warren, The Supreme Court in United States History, II, 239.

THE NATURE OF THE UNION IOI

but the decision was revolutionary in the sense that Taney
broke the precedent of previous respected decisions of the
Court and not in the sense that he sanctioned any unconstitu-
tional acquisition of power by the federal courts. It was a
nationalizing decision brought on by the changed conditions
, which resulted from the geographical growth of the country.

Limitations on Federal Power

Taney's decisions defining federal power did not always ex-
pand this power. When the relations between the States and
the national government were involved, he was as careful to
enforce the limitations on the power of the national govern-
ment as he was to protect what he considered the constitu-
tional sphere of power delegated to it. In the Passenger
Cases he declared that the national government could not
take away a reserved power of the States either by treaty or
by a law of Congress. 67 It is notable, however, that in the
whole time he was Chief Justice he wrote only one decision
holding an act of Congress unconstitutional and this did not
involve the relations between national and State power, but
the power of the national government over the Territories. 68
In the case of Kentucky v. Dennlson he made it clear that
he thought the national government had no right to exercise
control over a State "in the administration of its internal
concerns and reserved rights." 69 The suit was brought by
Kentucky to compel the governor of Ohio to surrender a
fugitive from justice wanted by Kentucky. Although regard-
ing the duty of the surrender of the fugitive as absolute,
Taney held that the national government had no power to
compel the State to fulfill its obligation in this respect. 70 He

67 7 Howard, 466 (1848). Dissenting opinion.

98 The act held unconstitutional was the Missouri Compromise, in Dred Scott v.
Sandjordj 19 Howard, 393 (1856).

69 24 Howard, 107 (1860).

^Taney's decision in this case has become the accepted interpretation of the
law. J. B. Moore, A Treatise on Extradition and Interstate Rendition, II, 980-
1004.

102 ROGER B. TANEY

said, "And we think it clear, that the Federal Government,
under the Constitution, has no power to impose on a State
officer, as such, any duty whatever, and compel him to per-
form it 5 for if it possessed this power, it might . . . impose
on him duties incompatible with the rank and dignity to
which he was elevated by the State." 71

This decision was consistent with Taney's theory of the
actual sovereignty of the States. It is conceivable that a
judge without his clear conception of the relative independ-
ence of a State might have issued a writ of mandamus, assum-
ing that since the State's duty was prescribed, the power of
enforcement might be implied. But in Taney's theory of the
two sovereignties, in the absence of a specific constitutional
provision, the agencies of the national government would
have no more power to force a course of action on a State,
where relations of State and nation were not involved, than a
State would have to force a course of action on the national
government.

Neither did he believe that the national government could
do by indirection what it might not do directly. During the
administration of President Jackson, when it was proposed to
distribute the surplus money in the federal treasury among
the States, Taney expressed his disapproval of such a step. In
the first place, he thought Congress could not rightfully raise
more money than the needs of the central government re-
quired. In the second place, he thought that if Congress
could raise more money than was needed, and distribute it
among States or corporations, the power of the central gov-
ernment would be enormously enlarged. The government
could then apply its moneys indirectly to any purpose that it
desired to further. 72

71 24 Howard, 108.

73 Letter to Jackson, June 27, 1836. Correspondence of Andrew
V, 410.

THE NATURE OF THE UNION IO3

The very thing that Taney warned against has become
not uncommon in recent times. By means of grants-in-aid the
federal government now exercises a powerful influence in
education, road building, and agricultural work. Relief ap-
propriations, the Reconstruction Finance Corporation, and
other agencies which have been used to combat the depression
have added immeasurably to the power of the federal govern-
ment, and the end is not yet. That Taney would have op-
posed such roundabout ways of augmenting the power of the
federal government seems indicated from the opinion referred
to above.

The Power of the States

When one turns to Taney's decisions defining the power of
the States it becomes evident that he regarded the authority
of the States as of equal dignity and as equally deserving of
protection as the authority of the national government. He
held that no federal power could diminish in any way the
reserved powers of the States. 73 The States were entitled to
all of the prerogatives of sovereignty not surrendered to the
national government. They were immune from suit without
their own consent, even though they defaulted on their
bonds. 74 A State could change its form of government at
will, so long as it maintained a republican form of govern-
ment as required by the Constitution. 75 It could impose
whatever taxes it thought proper on persons or things within
its dominion and apportion them as it thought best. 76 It
could determine "the status, or domestic and social condition,
of the persons domiciled within its territory" except so far as
limited by the federal Constitution. 77 Whether the acts of a

78 Dissenting opinion in Passenger Cases, j Howard, 4.66 (1848). Official
Opinions of the Attorneys General, II (1825-1835) 474-77.

74 Bank of Washington v. State of Arkansas, 20 Howard, 532 (1857).

75 Luther v. Borden et al., 7 Howard, 47 (1848).

76 Ohio Life Insurance and Trust Co. v. Debolt, 16 Howard, 428 (1853).

77 Strader et al, v, Graham, 10 Howard, 93 (1850).

ROGER B. TANEY

State were wise or unwise, just or unjust, was solely a matter
for the consideration of the State. 78 In all questions which
concerned only a State law or a State constitution the decision
and construction of the State courts was final. Federal courts
would accept such decisions as authoritative from the time
that they were made. 79

It is in his police power decisions that Taney contributed
most to the constitutional interpretation of State powers.
These decisions are so important as to require treatment in
separate chapters. In them, as well as in some of the in-
stances briefly mentioned above, Taney seems to depart from
the nationalistic traditions of John Marshall's Court. He
conceives of State sovereignty as having a vigor and complete-
ness different from that in Marshall's conception, or in
Story's. In a sense he is a strong defender of State's rights.
But an analysis of his decisions shows that he did not take
away power from the national government so much as he
added to the power of the States.

The difference between the interpretations of Marshall
and Taney is illustrated in the case of Prigg v. Pennsyl-
vania, 80 where the Court held unanimously that State authori-
ties could not interfere with the Fugitive Slave Law of the
national government, Mr. Justice Story writing the decision
of the Court held that the power of Congress on the subject
was exclusive. Chief Justice Taney, agreeing that no State
could interfere with the federal law, dissented from the prop-
osition that a State law aiding the federal authorities would
be unconstitutional. The difference is also illustrated in three
important cases which were decided by the Court during
Taney's first term as Chief Justice, namely City of New York
v. Miln^ Briscoe v. Bank of the Commonwealth of Ken-

78 Ohio Lije Insurance and Trust Co. v. Debolt, 16 Howard, 428 (1853).

79 Luther v. Borden et al. } J Howard, 4.0 (1848); Rowan et al. v. Runnels, 5
Howard, 139 (1846).

80 16 Peters, 539 (1842). ffl n Peters, 102 (1837).

THE NATURE OF THE UNION IO5

tucky*~ and Charles River Bridge v. Warren Bridget In
each of these cases the power of the States was construed
liberally, with Taney in the majority and Story dissenting.
The question at issue in each instance was not a limitation on
national power, but the extent of State power under the Con-
stitution, in one case to discourage an influx of pauper immi-
grants a in another to allow a State owned bank to issue bills
of credit^ and in the Charles River Bridge case to allow com-
petition with a chartered company.

Conclusion

Taj]y!sj^ Union is consistent with

his general theory of sovereignty. Believing in the highly
sovereign power of the people as their will is constitutionally
established, he sought to allow free expression to their will
whether in the delegated powers of the national government
or in the reserved powers of the States. Considered as a
grant of power to the national government he construed the
Constitution liberally j considered as a limitation on the power
of the States he construed it strictly. Both governments he
regarded as the agents of the people, entitled to equal respect,
and to equal protection in the exercise of their constitution-
granted functions.

83 ii Peters, 257 (1837). ffl 1 1 Peters, 420 (1837).

VI

THE CHARLES RIVER BRIDGE CASE
AND THE POLICE POWER

The American Conce-ption of Police Power

As A RESULT of the division of the powers of government in
the United States a concept of police power has developed
which is peculiar to American jurisprudence. 1 The term
"police power" is commonly used to denote the power exer-
cised by a legislature in restraining and limiting individual
rights and actions for the public good. 2 The law of the police
power is in a constant state of development because it deals
with the individual in relation to his social and economic
environment., which is continually changing. 3 It has come to
occupy an increasingly important place in American law in
modern times.

In the development of the American idea of police power
Chief Justice Taney played an important part in a period
when the whole doctrine was in its infancy. His decisions are
of strategic importance because they helped to bridge the gap
between the English theory of the sovereignty of Parliament
and the modern American conception of the police power. In
the early decisions of the Supreme Court where the expres-
sion "police power 37 appears ? it is used as a term referring to
the reserved sovereign powers of the States, and not as desig-
nating a particular branch of the State's authority. 4 During
the time that Taney was Chief Justice the term was in the
process of being narrowed down to mean particularly the
power of the State to legislate for the protection of the

1 W. W. Willoughby, The Constitutional Law of the United States , III, 1765.
3 Ernst Freund, The Police Power } pp. 3, 17. See also Willoug-hby, op. cit., p.
1774; and T. M- Cooley, Constitutional Limitations, 7th ed., p. 829.

8 Freund, op. cit., p. 3. * Willoughby, op. cit. } p. 1766.

CHARLES RIVER BRIDGE CASE IOy

morals, safety, and general welfare of its inhabitants even
though interstate commerce or some other subject of federal
legislation might be incidentally affected. 5

The general notion that the government has power to
limit the rights and property of individuals for the social wel-
fare is, of course, a very old one perhaps almost as old as
government itself. In England this power was exercised by
Parliament and Parliament was supreme. In Sir William
Blackstone's Commentaries on the Laws of England he sum-
marizes and discusses the laws which deal with "public po-
lice." After discussing laws prohibiting unfair trade prac-
tices, 6 he devotes a chapter to "Offences against the Public
Health and the Public Police and Oeconomy." 7 In the latter
chapter he lists quarantine laws, laws against selling unwhole-
some provisions, laws against clandestine marriages, bigamy,
common nuisances, idleness, luxury, gambling 5 statutes to
preserve game and statutes for keeping gypsies out of the
country. Some of the law on these subjects was a develop-
ment of the Common Law, but in most cases Parliament had
dealt with them by statutes. The power of Parliament to
enact social legislation was not constitutionally limited.

Three things prevented the complete incorporation of the
English doctrine into American law. In the first place, in
the American system the powers of government were divided
between the States and the nation. In the second place, there
was a written constitution which limited the powers of both.
Related to these factors, and of equal importance., was the
interpretation given to the Constitution by the Supreme Court
in the formative years when the Constitution was first being
put into service. The Court in those days was very tender
of private property rights and noticeably interested in

5 See ibid., pp. 1766-77.

6 Book 4, Chap. 12, pp. 154-60.

7 Book 4, Chap. 13, pp. 161-75.

IO8 ROGER B. TANEY

strengthening the power of the national government. 8 In
the United States there could be no such thing as the sov-
ereignty of a legislature in matters of public welfare.

In the American system all of the powers of government
not surrendered to the national government were regarded
as having been reserved by the States. 9 It was generally
conceded that power to make police regulations in purely
internal affairs, except where the obligation of contracts was
involved, was reserved to the State governments. In 1827,
Taney and Reverdy Johnson in presenting a case before the
Supreme Court based an argument on the assumption that
the States had power to protect the public safety by regulat-
ing the handling of gunpowder in a crowded city, or to pro-
tect the public health by regulating the sale of articles dan-
gerous or offensive to the public. 10 The Court speaking
through John Marshall accepted the validity of the assump-
tion without question. 11 Thus far there was no disagreement,
at least on the surface. Grounds for disagreement were
found mainly at two points of constitutional law 5 first, as to
how far the States could go in police legislation which affected
interstate or foreign commerce either directly or indirectly ;
second, as to how far the States could exercise their police
power without impairing the obligation of contracts.

The Court under John Marshall established the doctrine
that "Inspection laws, quarantine laws, health laws ... as

8 E. S. Corwln, op. cit., p. 113; W. D. Coles, "Politics and the Supreme Court
of the United States," The American Law Review, XXVII (1893), 182-208.

9 Number 38 (Madison) in The Foederalist, p. 265.

Sturges v. Crowninshield, 4 Wheaton, 193 (1819); The Idea Is well put in a
later case, Munn v. Illinois, 94 U. S. 124 (1876).

10 Brown et al. v. The State of Maryland, 12 Wheaton, 427-28.

11 "The power to direct the removal of gunpowder is a branch of the police
power, which unquestionably remains, and ought to remain with the State. . . .
We are not sure that this may not be classed among inspection laws. The removal
or destruction of infectious or unsound articles is undoubtedly, an exercise of that
power, and forms an express exception to the prohibition we are considering."
Ibid., 443-44-

CHARLES RIVER BRIDGE CASE 109

well as laws for regulating the internal commerce of a state"
were part of the reserved powers of the States 12 and laws of
this nature could be enacted, unless they came into conflict
with the authority of Congress over interstate or foreign
commerce. The Court held that "congress may control the
state laws, so far as it may be necessary to control them, for
the regulation of commerce." 13 In Brown V. Maryland 14
the principle was established that a State cannot under the
guise of the police power, or otherwise, levy any tax which
may be construed as a tax on the importation of goods. The
States were not to be allowed by taxation or otherwise to
retard, burden, or in any way control, the laws of Congress
constitutionally enacted. 15 When a State authorized the
damming up of a small creek in order to enhance property
values and protect the health of the citizens in its vicinity,
Marshall held the State law constitutional on the ground that
it was not repugnant to the federal power to regulate com-
merce in a dormant state or contrary to any law passed on
the subject. But he hastened to emphasize that Congress had
power to control even such small streams under its commerce
power. 16 The police power of the States emerges from the
first period of the Supreme Court definitely subordinated to
the commerce power of the national government.

The Court in this period was equally solicitous in protect-
ing the obligation of contracts against State legislation. Mar-
shall held that the right to contract, and the obligation of
contract, were not given by human legislation but were
natural rights of man. 17 The Court under his leadership
were zealous to protect these rights. They established the

12 Gibbons v. Ogden, 9 Wheaton, 203 (1824.).
*/&</., 206.

14 12 Wheaton, 4.19 (1827).

15 McCulloch v. Maryland, 4 Wheaton, 436 (1819).

^Willson v. Blackbird Creek Marsh Co., 2. Peters, 250-52 (1829).
17 Ogden v. SaunderS; 12 Wheaton, 346 (1827).

HO ROGER B. TANEY

principle that a State could not release a party to a contract
from any part of his obligation/ 8 but they went even farther
than that. In the Dartmouth College case Marshall held
that a charter from the State to an individual or a group of
individuals was a contract and could never be altered by the
State. 19 On another occasion the Court held that when a
contract of tax exemption is written into a charter it can never
be withdrawn. 20 It will readily be seen that the police power
of the States might be seriously circumscribed by these prin-
ciples unless they should be modified by later decisions.

By the time of Taney's appointment to the Court the
growth of the nation and the increasing number of corpora-
tions made some sort of modification imperative for the gen-
eral welfare. Taney led the Court in a swing away from the
strictest protection of contract property rights toward a new
emphasis on the welfare of the community. 21

Police Power in Conflict with Chartered Privileges

In the first term of Court after Taney became Chief Justice
a case came up for decision in which the contract rights of a
corporation clashed with the public interest. 22 The suit was
between two bridge companies. In 1785, the legislature of
Massachusetts had incorporated a company and authorized it
to build the "Charles River Bridge" and collect tolls for its
use. In 1828, the legislature incorporated another company
called "The Proprietors of the Warren Bridge" and author-
ized it to build another bridge within a few rods of the
Charles River Bridge. By the terms of this second charter
the Warren Bridge was to be surrendered to the State as
soon as the tolls received had reimbursed the owners for

18 Sturges v. Crozvninshield, 4 Wheaton, 197 (1819).

Dartmouth College v. Woodzuard, 4 Wheaton, 625 (1819).

20 New Jersey v. Wilson, 7 Cranch, 164 (1812).

21 See Charles Warren, The Supreme Court in United. States History) II, 34-35.
^Charles River Bridge v. Warren Bridge, n Peters, 420 (1837).

CHARLES RIVER BRIDGE CASE III

building and maintaining it, or at any rate within six years
after they had begun to receive tolls. The Charles River
Bridge Company sought to enjoin construction of the new
bridge on the ground that it impaired the obligation of their
contract with the State.

The immediate question before the Court was, does the
grant of a charter to a corporation to build a toll bridge con-
tain an implied contract that the State will not erect a free
bridge nearby during the life of the charter? The larger
issue may be stated in the words of the opposing attorneys.
John Davis, counsel for the defendants said:

On one side, then are the rights to private property, sacred and
inviolable, so far as they can be established 5 but claimed in the
form of a burdensome tax on the public, and therefore entitled to
no favor beyond strict right.

On the other side stands the public, complaining that they are
tributaries to this great stock of private wealth and subjected to
inconveniences still more burdensome from the want of suitable
accomodations for intercommunication across the river, if this
bridge is to be shut up; and denying that such claims of exclusive
right can be justly or lawfully set up by the plaintiffs. 23

Said Daniel Webster,, counsel for the plaintiffs, "The pro-
motion of public accomodation is no reason for taking away a
privilege held under a legal grant. . . . The income derived
from these rights shall not be diminished." 24 He contended
that it was a question of the fair construction of a contract.

Coming at a time when the country was growing rapidly
and methods of transportation were constantly being im-
proved and routes extended, the case assumed particular im-
mediate importance. And the general principle of the con-
struction of corporation charters was of great importance for
the future as well.

Chief Justice Taney delivered the Court's decision. Be-

23 ii Peters, 4.75. * Ibid., 529.

112 ROGER B. TANEY

fore considering the doctrine which it enunciated, it may be
well to notice Taney's theory of the purpose of public utility
corporations. In 1832, as Attorney General, speaking of
another bridge company he said, "Certain privileges are given
to them, in order to obtain a public convenience 3 and the in-
terest of the public must, I presume, always be regarded as
the main object of every charter for a toll-bridge or a turn-
pike road. The exclusive privileges are not given to the
corporators merely for individual emolument, or from fa-
voritism, but are granted as a compensation for the public
convenience derived, from the work done by them, and are
offered in the charter as inducements to individuals to under-
take it. 5 ' 25 Mr. Justice Brandeis expressed a similar idea in
1923 when he said in a public utility case, "The investor
agrees, by embarking capital in a utility, that its charges to the
public shall be reasonable. His company is the substitute for
the State in the performance of the public service j thus be-
coming a public servant. 3 ' 26

In approaching a question such as that involved in the
Charles River Bridge Case, Taney thought in terms of the
public welfare, whereas Marshall or Webster would have
thought in terms of private property rights. 27 According to
Taney's theory the corporation existed to serve the people,
and not the government to serve the corporation. To him
the granting of a charter to a corporation did not create for
it any right, either God-given or constitutional, to make
money indefinitely at the expense of the public. The charter
was granted by the government for the benefit of the public.
The government would faithfully observe its provisions, but
could not be expected to do more. The keynote of his de-

25 Official Opinions of the Attorneys General, II, 514.

26 Dissenting opinion in Southwestern Bell Telephone Co. v. Public Service
Commission, 262 U. S. 290-91 (1922).

27 See Charles Warren, The Supreme Court in United States History, II, 34-35
and V. L. Parrington, Main Currents in American Thought, II, 23.

CHARLES RIVER BRIDGE CASE 113

cision in the Charles River Bridge Case is to be found in the
statement., "But the object and end of all government is to
promote the happiness and prosperity of the community by
which it is established ; and it can never be assumed, that the
government intended to diminish its power of accomplishing
the end for which it was created." 28 Taney did not think of
government as a mechanical arrangement which men endured
because they must. It was a social organization for the pro-
motion of human welfare. He did not think in terms of
natural rights of individuals, but in terms of "the happiness
and prosperity 57 of the community.

Concerning the principles of construction to be applied in
the Charles River Bridge Case Taney said:

The court think there can be no serious difficulty on that head.
It is the grant of certain franchises by the public to a private
corporation, and In a matter where the public interest is concerned.
The rule of construction In such cases Is well settled, both in Eng-
land, and by the decisions of our own tribunals. In ... the case
of the proprietors of the Stourbridge Canal v. Wheeley and others,
the court say: "The canal having been made under an act of
parliament, the rights of the plaintiffs are derived entirely from
that act. This ... is a bargain between a company of adven-
turers and the public . . . and the rule of construction in all such
cases, is ... that any ambiguity in the terms of the contract,
must operate against the adventurers, and In favor of the public,
and the plaintiffs can claim nothing that is not clearly given them
by the act." . . .

Borrowing, as we have done our system of jurisprudence
from the English law; and having adopted, In every other case,
civil and criminal, Its rules for the construction of statutes; is there
any thing in our local situation, or In the nature of our political
institutions, which should lead us to depart from the principle
where corporations are concerned? . . . We think not; and it
would present a singular spectacle, if, while the courts in England

28 1 1 Peters, 54.7.

114 ROGER B. TANEY

are restraining, within the strictest limits, the spirit of monopoly
and exclusive privileges in nature of monopolies, and confining
corporations to the privileges plainly given to them in their charter 5
the courts of this country should be found enlarging these priv-
ileges by implication; and construing a statute more unfavorably
to the public^ and to the rights of the community, than would be
done in a like case in an English court of justice. 29

The rule was not so well established in American law as
Taney's statement would seem to indicate. The Court had
declared in previous cases that public grants to private in-
terests were to be strictly construed, 30 but it had never before
given the rule anything like the stringent interpretation that
Taney gave it. The last paragraph quoted above from the
Charles River Bridge decision furnishes a clue to the real
reasons for the decision. Taney did not believe that the
courts should give corporations anything by implication when
the rights o the public were involved. We know from his
opinions expressed in the war on the Bank that he was very
critical of corporate monopolies held at the expense of the
public. What he did in this case was to establish a new rule
in American law. It was a piece of wise judicial statesman-
ship, but it cannot claim the sanction of precedent from John
Marshall's court.

The Social Importance of Strict Construction of
Charter Grants

Taney points out that America is an active and enterprising
country growing in numbers and in wealth, and daily finding
necessary new channels of communication for the "comfort,
convenience, and prosperity of the people." A state ought
never to be presumed to surrender its power to promote "the

20 1 1 Peters, 544-46.

80 Taney cited four cases as precedent: C7. S. v. Arrendondo, 6 Peters, 738
(1832). Jackson v. Lamphire, 3 Peters, 289 (1830). Beaty v. The Lessee of
Knowler, 4 Peters, 168 (1830). Providence Bank v. Billings and Pitman, 4
Peters, 514 (1830).

CHARLES RIVER BRIDGE CASE 11$

happiness and prosperity of the community." Referring to
the case at hand he continued.

And when a corporation alleges, that a State has surrendered for
seventy years, its power of improvement and public accomodation,
in a great and important line of travel, along which a vast number
of its citizens must daily pass; the community have a right to insist,
in the language of this court above quoted, "that its abandonment
ought not to be presumed, in a case, in which the deliberate pur-
pose of the State to abandon it does not appear." The continued
existence of a government would be of no great value, if by
implications and presumptions, it was disarmed of the powers
necessary to accomplish the ends of its creation ; and the functions
it was designed to perform, transferred to the hands of privileged
corporations. . . . No one will question that the interests of the
great body of the people of the State, would, in this instance, be
affected by the surrender of this great line of travel to a single
corporation, with the right to exact toll, and exclude competition
for seventy years. While the rights of private property are
sacredly guarded, we must not forget that the community also
have rights, and that the happiness and well being of every citizen
depends on their faithful preservation. 31

The results of any other than a strict construction of such
charters might well prove disastrous to internal improve-
ments, Taney pointed out. The States had encouraged the
building of turnpike roads, sometimes different ones along
the same line of travel. Then in some cases railroads were
built along the same route and the franchise of the turnpike
company rendered worthless. Now, says Taney:

Let it once be understood, that such charters carry with them
these implied contracts, and give this unknown and undefined
property in a line of travelling; and you will soon find the old
turnpike corporations awakening from their sleep and calling upon
this court to put down the improvements which have taken their
place. The millions of property which have been invested in rafl-
31 1 1 Peters, 547-48.

1 1 6 ROGER B. TANEY

roads and canals, upon lines of travel which have been before
occupied by turnpike corporations, will be put in jeopardy. We
shall be thrown back to the improvements of the last century and
obliged to stand still, until the claims of the old turnpike corpora-
tions shall be satisfied; and they shall consent to permit these states
to avail themselves of the lights of modern science, and to partake
of the benefit of those improvements which are now adding to
the wealth and prosperity, and the convenience and comfort, of
every other part of the civilized world. 32

In this decision, and in his other opinions involving the
police power, Taney was not merely legalistic in his thinking.
He was alive to economic and social conditions. He proposes
to interpret the law as "a vehicle o life," not establish prin-
ciples that will serve to hold back the nation's continuing
development. He is a progressive agrarian in his outlook, a
Jacksonian, who not only lays down progressive principles of
law, but also views with a jealous eye any attempt of cor-
porate wealth to hang on to privileges that may be harmful
to the general welfare.

The essence of the Charles River Bridge decision is found
in the following terse statements:

Does the charter contain such a contract on the part of the State ?
... If a contract on that subject can be gathered from the
charter it must be by implication, and cannot be found in the
words used. Can such an agreement be implied? The rule of
construction before stated is an answer to the question. In char-
ters of this description, no rights are taken from the public, or given
to the corporation, beyond those which the words of the charter,
by their natural and proper construction, purport to convey. 33

The Conservative Viewpoint

In the eyes of the conservatives this decision was rank heresy.
Justice Story dissented from it with a long and carefully de-
veloped opinion. To him it was a break away from "the old

83 ii Peters, 551-53- * Peters, 549.

CHARLES RIVER BRIDGE CASE 117

law." By its "speculative niceties or novelties" the Court's
decision endangered the title-deeds of those who held rights
by public grants. A charter should be construed by the same
rules as any statute. The Court should seek to find the legis-
lative intent and give it a a full and liberal operation." 34
Chancellor Kent roundly condemned Taney's decision and
commended Story for his dissent. He saw in the decision an
injury to the moral sense of the community, and he wrote, "I
abhor the doctrine that the Legislature is not bound by every-
thing that is necessarily implied in a contract in order to give
it effect and value." 35 Pessimism prevailed among the
Tories. The decision of the Court was strong evidence that
the fierce democrats who now controlled it were going to
tear down some of the most sacred pillars of the economic
order.

Justice Story and the other conservatives were afraid that
the principle established in the Dartmouth College Case 36
was being overthrown. The principle was that a charter is a
contract, the property rights of which will be protected by
the federal courts. In the Charles River Bridge decision
Taney did not deny the validity of MarshalPs doctrine of
the contractual nature of charters, but he did lay down a rule
of construction that would have made the Dartmouth Col-
lege decision improbable had Marshall followed it. Taney's
Court did not reverse Marshall's decision but it did restrict
its efficacy fortunately for the general welfare in the days
of prolific corporations that lay ahead.

The Dartmouth College decision gave corporations priv-
ileges which they had not had under the Common Law. It
interpreted the "obligation of contracts" clause in a way that
its framers probably never dreamed that it would be in-

84 ii Peters, 555.

^Quoted in Charles Warren, The Supreme Court in United States History,

II, ZQ.

80 4 Wheaton, 518 (1819).

1 1 8 ROGER B. TANEY

terpreted 37 The doctrine that charters were contracts and
entitled to constitutional protection was doubtless not a harm-
ful one if applied with moderation, but if given a generous
interpretation it would seriously curtail the power of the legis-
latures. There was danger that the doctrine would be pushed
much too far by its advocates. 38 Taney checked the develop-
ment and pruned off its growth. His decision has met with
the general approval of the bar. 39

The Significance of the Charles River Bridge Decision

The Charles River Bridge decision was a Magna Carta in
American law. One writer has said of Taney,

It was due to him more than to any other man that the power of
the States to make internal improvements was retained at a time
when it was peculiarly necessary that they should have full liberty,
unrestrained by any constitutional limitations, to sweep away ex-
crescences and obsolete institutions and build anew works adequate
to the times and to the future. This power the Chief Justice
preserved ... in Charles River Bridge */ Warren Bridge . . .
where he laid down the doctrine that a State in granting a fran-
chise could not be presumed to have made also an implied contract,
which in effect would guarantee the value of the franchise. 40

In giving State legislatures added freedom to regulate cor-
porations and legislate for the general welfare the decision
opened the way for the development of effective police power
legislation. Some of the results may be seen in succeeding
decisions where it has been cited for support. Mention of a
few of the cases in which it has been referred to will serve as
some indication of the nature of our inheritance from the
principle which Taney established in American law.

87 "Legislative Control over Railway Charters," American Law Review^ I
(1867), 451-52-

38 George W. Biddle, in Constitutional History of the United States as Seen in
the Development of American Law, pp. 132-33.

89 lbid.> p. 133.

40 F. R. Jones, "Roger Brooke Taney," The Green Bag, XIV (1902), 7.

CHARLES RIVER BRIDGE CASE 119

In Knoxville Water Company v. Knoxville* 1 the Supreme
Court held that a contract between a city and a water com-
pany which provided that the city should not enter into any
agreement with any other person or corporation to get its
water from them, did not preclude the city from establishing
its own waterworks. In making its decision the Court quoted
the rule laid down by Taney in the Charles River Bridge
Case and reaffirmed it. 42

In 1907, a federal court held that a city franchise to a
telephone company setting maximum rates did not bar the
city from ordering the rates lowered during the life of the
franchise. The court declared that the power to regulate
public utility rates falls within the police power of the State,
and where parties claim its abandonment or suspension the
rule is that of strict construction laid down in the Charles
River Bridge Case. 43 State courts have cited the Charles
River Bridge decision, in upholding the power of a city to
tax a street railway company for the improvement of the
streets along which its tracks ran, 44 in requiring a railroad
company to pay for overhead bridges built by a city over its
tracks, 45 and in holding that a city might construct its own
electricity plant even though by so doing it might practically
ruin the franchise which it had previously granted to a private
corporation. 46 These applications of Taney's principle, all of
them since 1 900, are indicative of its importance as an integral
part of the law of modern public utility regulation. 47

When Taney wrote his decision the conservatives thought
41 200 u. s. 22 (1901). "/A*/., 37-38.

43 Home Telephone & Telegraph Co. v. City of Los Angeles et al. t 155 Fed.,

554, 57> 57* (1907)-

^Oklahoma City v. Shields, 100 Pac., 559-72 (1908).

45 St. Louis v. St. Louis & S. F. R. Co., 129 S. W. 691-99 (1910).

48 Clark v. City of Los Angeles, 116 Pac., 722-25 (1911).

* T See also State v. St. Paul etc. Ry. Co., 108 N. W. 261-67 (1906)5 Boise City
v. Boise Artesian Hot and Cold Water Co., 186 Fed., 710 (1911)5 Territory v.
Long Bell Lumber Co. y 99 Pac., 918 (1908).

I2O ROGER B. TANEY

it destructive of the fundamental principles of constitutional
law, yet Taney and the conservatives were looking at the
same clause in the Constitution. Their interpretations were
different because their conceptions of the proper function of
government were different. If the purpose of government is
primarily the protection of private property rights, statutes
which threaten to limit the income from property should be
enacted only in cases of great necessity. If the purpose of
government is the promotion of happiness and prosperity of
the community., legislation which tends toward that end is
legitimate even though it curtails the dividends of particular
individuals. Taney took the latter view. His theory of gov-
ernment left the way clear for legislation made desirable by
the economic and social changes of his own time and those
which have come with increasing rapidity In the years since
then.

VII
THE EXTENSION OF THE POLICE POWER

The Liberalization of the Judicial Attitude toward
Police Power Legislation

TANEY CAME to the Supreme Court in a period of increasing
social legislation by the States. The public demand for the
construction of canals and railroads, for free schools, for laws
dealing with immigrants, for anti-liquor legislation, and for
the abolition of slavery led to increased activity on the part
of State legislatures, 1 If the legislatures were to carry out
the program demanded by the people it was necessary that
the courts be guided by constitutional theory that would not
seriously interfere with it. Chief Justice Taney's theory
would allow the States almost complete power to enact legis-
lation for the welfare of their citizens. Some of his ideas
along that line were revealed during the first term of Court
after he became Chief Justice, as we have already noticed, in
the Charles River Bridge decision. When Taney came to
the Court a majority of its members were Jackson appointees
and most of them were willing to go along with him in writ-
ing into the law of the Court a liberal interpretation of the
police power.

A liberalization was already in process in the State courts.
A change of atmosphere became noticeable in the twenties
when the increased popular control of government began to
make itself felt. In 1826, the New York Supreme Court in
upholding a city ordinance forbidding the use of certain
premises as a cemetery, in spite of a previous grant, asserted
that the city officers had no power "to make a contract which

1 See E. S. Corwin, "The Doctrine of Due Process of Law Before the Civil
War," Harvard Law Review, XXIV (1911), 4.60-61.

[121]

122 ROGER B. TANEY

should control or embarrass their legislative powers and
duties." 2 In 1831, another State court upheld the right of a
city government to fill up a creek as a public health measure,
even though by so doing they might to some extent interfere
with private rights without providing for compensation. 3
Several years later in Commonwealth v. Alger^ Chief Justice
Shaw of the Massachusetts court declared, "All property in
this commonwealth ... is derived directly or indirectly
from the government, and held subject to those general reg-
ulations, which are necessary to the common good and gen-
eral welfare." 5 And just a little later in his decision he gave
his widely quoted definition of the police power, defining it
as "the power vested in the legislature by the constitution, to
make, ordain and establish all manner of reasonable laws,
statutes, and ordinances, either with penalties or without, not
repugnant to the constitution, as they shall judge to be for
the good and welfare of the commonwealth, and of the sub-
jects of the same." In giving a wider scope to the powers of
the State legislatures, Taney's Court was following a trend
already begun by the State courts and continued by them until
the Civil War. 7

Questions connected with the development of the police
power sometimes resolved themselves into questions of the
extent of the legislative power in general. Some of the
earlier jurists had believed the legislature limited by natural
law. Justice Chase had said, "There are certain vital prin-
ciples in our free republican governments, which will de-
termine and overrule an apparent and flagrant abuse of legis-

s Brick Presbyterian Church v. the City of Neto York, 5 Cowen, 538-40.
8 Edmund Baker v. The City of Boston, 12 Pickering-, 184, 194 (Mass.). See
also Commonwealth v. William Tewksbury, n Metcalf, 55 (Mass. 1846).

4 7 Gushing, 53 (Mass. 1851).

5 7 Gushing, 85. * Ibid.

7 See also Stuyvesant v. The Mayor of New York, 7 Cowen, 588 (N. Y. 1827)5
Thorpe v. The Rutland and Burlington Railroad Co., 27 Vt., 142 (1854); State v.
Noyes, 10 Foster, 279 (N. H. 1855).

EXTENSION OF THE POLICE POWER 123

lative power. . . . 3?8 And John Marshall had asserted^ "It
may well be doubted whether the nature of society and of
government does not prescribe some limits to the legislative
power j and if any be prescribed, where are they to be found,
if the property of an individual, fairly and honestly acquired,
may be seized without compensation." 9

The courts of the Jacksonian era tended to discard this
theory and to regard the legislature as supreme except where
it was limited by either State or national constitution. In
1856, the Michigan Supreme Court stated that the legislature
"must possess all the powers of a sovereign state except such
as are withheld by the state constitution and such as are con-
ceded to the general government." 10 This theory was the
one accepted by Chief Justice Cooley 11 and it represents also
the view of Mr. Justice Holmes. 12 That this was substan-
tially the theory held by Chief Justice Taney may be gathered
from the fact that he never refers to natural law as limiting
the legislature. He does not talk of natural rights. The
only limitations which he refers to as applying to the State
legislatures are constitutional ones. In all cases involving
State legislation he was willing to leave the matter of consti-
tutionality entirely up to the State courts unless a federal
question was involved.

The State's Power over Immigration

During the same term of the Supreme Court at which the
Charles River Bridge case was decided a case came up which
involved the constitutionality of a New York immigration
law. 13 The New York statute required masters of ships arriv-

*Calder v. Bull, 3 Dallas, 388 (1798).

9 Fletcher v. Peck, 6 Cranch, 135 (1810).

10 People v* Gallagher, 4 Mich., 244. (1854). See also Goddard v. Jackson-
ville, 15 111., 589 (1854)5 and State v. Noyes, 10 Foster, 279 (N. H. 1855).

11 Op. clt. } p. 126.

13 Dissenting opinion In Tyson v. Banton, 273 XL S. 446 (1926).
13 City of New York v. Miln, n Peters, 102 (1837).

124 ROGER B. TANEY

ing in New York City to report certain information concern-
ing their passengers to the city officials so that the city could
take steps to prevent the settlement of immigrants who were
likely to become paupers. In a decision written by Justice
Barbour the Court upheld the constitutionality of the law as
a valid exercise of the police power. Chief Justice Taney was
one of the majority whose opinion the decision represented.
The decision held that the law was a regulation not of com-
merce, but of police. The object was to prevent an inflow of
foreigners who were likely to become chargeable on the city
as paupers. The means used was the requirement of a report
from masters of ships. Both the end and the means were
within the competency of the States, said the Court. "We
choose to plant ourselves on what we consider impregnable
positions. They are these: That all those powers which relate
to merely municipal legislation, or what may perhaps, more
properly be called internal police, are not thus surrendered
or restrained 3 and that, consequently, in relation to these, the
authority of a State is complete, unqualified, and exclusive." 14
Justice Story dissented, holding that the law interfered with
the commerce power of the national government. His dis-
sent is probably an indication of what the decision of John
Marshall's Court would have been. The difference between
his dissent and the Court's decision marks the difference be-
tween the old Court and the new.

In 1848 the Court was again forced to decide on the con-
stitutionality of State laws affecting immigration. The case
of N orris v. City of Boston involved a Massachusetts statute
and the case of Smith v. Turner involved a New York statute.
They were considered together and reported under the head
Passenger Cases ^ The Massachusetts law provided for in-
spection by city officials of immigrant passengers on incoming
ships. If any immigrants were found who were considered

14 II Peters, 139. K 7 Howard, 283.

EXTENSION OF THE POLICE POWER 125

likely to become a public charge they were not to be allowed
to land until the master of the ship had posted a bond in each
case that the passenger in question would not become a public
charge within ten years. The New York law required the
payment of a small tax on each passenger on entering ships,
the money derived from this source to be used to maintain a
marine hospital. The majority of the Court held both of
these laws unconstitutional. However., there was wide dis-
agreement in the reasoning of the justices, and numerous
opinions were written.

Chief Justice Taney wrote a dissenting opinion in which
he upheld the constitutionality of the laws. To him the laws
seemed a reasonable exercise of the police power reserved
by the States. In speaking of the Massachusetts law he said,
"Massachusetts deems the introduction of aliens into the State
from foreign countries likely to produce in the State a numer-
ous pauper population, heavily and injuriously burdensome
to its citizens. It would be easy to show, from the public
history of the times, that the apprehensions of the State are
well founded j that a fearful amount of disease and pauperism
is daily brought to our shores in emigrant ships, and that
measures of precaution and self-defence have become abso-
lutely necessary on the Atlantic border." 16 These statements
show his keen appreciation of the problems faced by the sea-
board States as a result of the increasing influx of immigrants.
But to him it was not fundamentally a question of the reason-
ableness of the law, and he added, "Whether this law was
necessary or not is not a question for this court ; and I for-
bear, therefore to discuss its justice and necessity. This court
has no power to inquire whether a State has acted wisely or
justly in the exercise of its reserved powers." 17

18 7 Howard, 467-68.

17 7 Howard, 468. Compare with the statements of Mr. Justice Holmes: "It
is settled by various decisions of this court that state constitutions and state laws
may regulate life in many ways which we as legislators might think as injudicious

126 ROGER B. TANEY

He pointed out that the real question involved was one o
power. He said:

And the first inquiry is, whether under the Constitution of
the United States, the federal government has the power to compel
the several States to receive . . . every person or class of persons
whom it may be the policy or pleasure of the United States to
admit. ... I do not mean to say that the general government
have, by treaty or act of Congress, required the State of Massachu-
setts to permit the aliens in question to land. I think there is no
treaty or act of Congress which can justly be so construed. . . .
For if the people of the several States of this Union reserved to
themselves the power of expelling from their borders any person,
or class of persons, whom it might deem dangerous to its peace or
likely to produce a physical or moral evil among its citizens, then
any treaty or law of Congress invading this right, and authorizing
the introduction of any person or description of persons against
the consent of the State, would be an usurpation of power which
the court could neither recognize nor enforce. 18

Taney says he had supposed the question of a State's right
to expel persons deemed dangerous or undesirable was no
longer open to dispute. On several previous occasions the
Court had distinctly decided that the States had that power.
To him it was equally clear that if a State "may remove from
among its citizens any person or description of persons whom
it regards as injurious to their welfare, it follows that it may
meet them at the threshold and prevent them from entering.
. . . Neither can this be a concurrent power . . . the sov-
ereignty which possesses the right must in its exercise be alto-

or if you like as tyrannical as this, and which equally with this interfere with the
liberty to contract. . . . But a constitution is not intended to embody a particular
economic theory, whether of paternalism and the organic relation of the citizen to
the State or of laissez fairs." Lochner v. New York, 198 U. S. 75 (1904). Dis-
senting opinion. See also his decision in Laurel Hill Cemetery v. San Francisco,
216 U. S. 365 (1909).

18 7 Howard, 465-66. The decision of Missouri v. Holland, 252 U. S. 416
(1920) would seem to be contrary to this doctrine.

EXTENSION OF THE POLICE POWER

gether independent of the other." 10 His own conclusion,
"both upon principle and upon the authority of adjudged
cases," was that the States had retained the power, both to
expel from and to prevent from entering their boundaries all
persons deemed dangerous or injurious to the welfare of their
citizens. And the State had the exclusive right to determine
whether or not the danger existed, "free from the control of
the general government. 5 ' 20

The Relation between the Police Power and the
Commerce Power

In discussing the relation between these laws and the com-
merce power of the national government Taney asserted that
passengers are not imports. 21 In a note at the close of the
opinion he added, "It has been said in the discussion of these
cases . . . that commerce means intercourse; and that the
power granted to regulate it ought to be construed to include
intercourse." If this was an attempt by a substitution of
words to read into the Constitution an enlargement of na-
tional power and a corresponding diminution of State power
it was utterly unwarranted, according to his canons of con-
stitutional construction. He said, if the word intercourse
"means nothing more than the word commerce, it is merely
the addition of a word without changing the argument 5 but
if it is a word of larger meaning, it is sufficient to say that
then this court cannot substitute it for the word of more
limited meaning contained in the Constitution." 22

It will be seen from Taney's opinion in this case that he
believed that the States had a wide independence in the exer-
cise of their police powers. The national government had no
right to infringe on these powers either by statute or by
treaty. The authority being reserved by the States, and

19 7 Howard, 466. a Ibid., 477.

20 Ibid., 467. * Ibid., 493.

128 ROGER B. TANEY

wholly in their hands, was to be exercised at their discretion.
Whether they used it wisely or not, or whether they used it
at all, was a matter over which the national government had
no control.

Taney had before this expressed his belief that the na-
tional government could not infringe on the reserved powers
of the States even in the exercise of its treaty making power.
In 1831, while he was Attorney General he had expressed an
opinion that the national government could not by treaty
interfere with the right of a State to prohibit slavery within
its territory. 23 Speaking for the Supreme Court in the case
of Holmes v. Jennison in j 840 he said, "The power to make
treaties . . . was designed to include all those subjects,
which, in the ordinary intercourse of nations, had usually
been made subjects of negotiation or treaty 5 and which are
consistent with the nature of our institutions, and the dis-
tribution of powers between the general and state govern-
ments." 24

In a later case involving the relation between the police
power of the States and the commerce power of the national
government Taney, speaking for tKe Court, upheld the power
of a port city to make police regulations for its harbor. 25 A
collision of ships had occurred in the harbor of Charleston
and it was alleged that one ship had violated regulations
established by ordinances of the city. The regulations pro-
vided that no ship should lie in the thoroughfare for more

^Official O-pinions of the Attorneys General, II (1825-1835), 4.77.

2t 14 Peters, 569.

25 Brig James Gray v. Skip John Fraser et al., 2.1 Howard, 184 (1858). In
1851 in the case of Coolcy v. Wardens of the Port, when a similar question was at
issue the Court had said of the commerce power of the national government,
"Whatever subjects of this power are in their nature national, or admit only of
one uniform system, or plan of regulation, may justly be said to be of such a
nature as to require exclusive legislation by Congress. That this cannot be
affirmed of laws for the regulation of pilots and pilotage is plain." 12 Howard,
319. Although Taney did not write this decision he was one of the majority
whose judgment It represented.

EXTENSION OF THE POLICE POWER 129

than twenty-four hours and required ail vessels anchored in
the harbor to keep a light burning on board from dark until
daylight. In his decision of the case Taney said that such
regulations were necessary in all ports for the convenience
and safety of commerce. "And the local authorities have a
right to prescribe at what wharf a vessel may lie, and how
long she may remain there, where she may unload or take
on board particular cargoes, where she may anchor in the
harbor, and for what time, and what description of light she
shall display at night to warn the passing vessels of her posi-
tion, and that she is at anchor and not under sail." These
regulations must be obeyed by all ships, no matter from what
part of the world they may corne. And, he asserted, there is
nothing in such regulations which conflicts with any law of
Congress regulating commerce or with the admiralty jurisdic-
tion of the federal courts. 26

The Power to Regulate the Liquor Traffic
Perhaps the most interesting exercise of the police power in
the reforming period which we are discussing came in the
decade from 1846 to 1856. In those ten years sixteen States
passed anti-liquor laws, more or less drastic in nature. 27
These laws were a severe strain on the doctrine of vested
rights. In some instances they were attacked on the ground
that they violated natural rights, in others on the ground that
they were contrary to the commerce power of the national
government. In most cases these laws were upheld by the
State courts, which were inclined to leave the definition of the
police power essentially to the discretion of the legislatures. 28
In 1847, the Supreme Court of the United States put a

86 2 1 Howard, 187-88.

27 E. S. Corwin, "The Doctrine of Due Process of Law before the Civil War,"
Harvard Law Review t XXIV (1911), 460-79.

28 See State v. Noyes, 10 Foster, 279 (N, H. 1855); Goddard v. Jacksonville,
15 111., 589 (1854); People v. Gallagher, 4 Mich., 244 (1856). An exception to
the rule was Wynehatner v. State of New York, 13 N. Y. 378 (1856).

I3O ROGER B. TANEY

damper on the argument that such laws were repugnant to
the commerce power of the national government. In that
year three cases came before the Court involving State laws
which aimed to discourage the use of hard liquors by pro-
hibiting their sale in small quantities and by dealers without
licenses obtained from State authorities. 29 The laws were
alleged to be unconstitutional on the ground that they were
an infringement on the national government's power over
interstate and foreign commerce.

Chief Justice Taney delivered the decision of the Court.
In the beginning he declared that a law of Congress regulat-
ing interstate or foreign commerce must be supreme, and any
State law conflicting with such a regulation would have to be
set aside. But the States had never surrendered power over
trade and commerce within the State. He pointed out that
these principles had never been questioned, that the difficulty
lay in applying them. It was not always easy to draw the
line between foreign and domestic commerce and tell just
where one left off and the other began. The Court had
already laid down the "original package" doctrine in the case
of Brown v. The State of Maryland. 30 Although Taney had
been counsel for the State of Maryland in that case, and had
at the time thought the original package doctrine a wrong in-
terpretation of the Constitution, he says now, "But further
and mature reflection has convinced me that the rule laid
down by the Supreme Court is a just and safe one, and per-
haps the best that could have been adopted for preserving
the right of the United States on the one hand, and of the
States on the other, and preventing collision between them." 31
Recognizing the rule as authoritative he proceeds to apply it
to the cases at hand. It is perhaps well to remember in this
connection that Taney and Marshall usually gave outward

^License Cases, 5 Howard, 573. * 12 Wheaton, 419 (1827).

81 5 Howard, 575.

EXTENSION OF THE POLICE POWER

allegiance to the same principles, but their interpretations
differed at vital points.

Applying the original package doctrine to the liquor li-
cense laws in question, Taney says that if the State laws come
in conflict with acts of Congress by attempting to obstruct the
importation or sale of liquors in the original container in
which they were imported, after Congress has authorized
their importation, the State laws must be held void. It had
been suggested in the argument of the case that if a State
considered traffic in hard liquor to be injurious to its citizens
and productive of "immorality, vice, and pauperism" it might
constitutionally refuse to permit its importation notwithstand-
ing the laws of Congress. The contention was that a state
could do this on the same ground that it could resist "the
introduction of disease, pestilence, or pauperism from
abroad." At this point Taney makes a distinction which is
designed to clarify the line between the police power of the
States and the commerce power of the national government*
He says,

But it must be remembered that disease, pestilence and pauperism
are not subjects of commerce, although sometimes among its
attendant evils. They are not things to be regulated and trafficked
in, but to be prevented, as far as human foresight or human
means can guard against them. But spirits and distilled liquors
are universally admitted to be subjects of ownership and property,
and are therefore subjects of exchange, barter, and traffic, like
any other commodity in which a right of property exists. And
Congress, under its general power to regulate commerce with
foreign nations, may prescribe what article of merchandise shall be
admitted, and what excluded; and may therefore admit, or not,
as it shall deem best, the importation of ardent spirits. And inas-
much as the laws of Congress authorize their importation, no State
has a right to prohibit their introduction. 32

SS 5 Howard, 5?6-77-

132 ROGER B. TANEY

We may infer from these statements that Taney believed
the commerce power of the national government to be con-
cerned primarily with things which were property and could
be bought and sold. In his dissenting opinion in the Passen-
ger Cases, already referred to, he declared that passengers
were not imports. 33 Over all matters which were legitimate
subjects for the police power, except the traffic in the things
in interstate and foreign commerce, Taney was willing to give
the States complete power. Although one should be aware
of the danger of reading too much into a decision, it is per-
haps fair to assume also that Taney would have been very
conservative about allowing the national government to exer-
cise what has come to be called national police power. One
cannot help believing that he would probably have agreed
with the decision of the Court in the child labor case of Ham-
mer v. Dagenhart in which it declared, "There is no power
vested in Congress to require the States to exercise their police
power so as to prevent possible unfair competition. . . . The
grant of power to Congress over the subject of interstate com-
merce was to enable it to regulate such commerce, and not to
give it authority to control the States in their exercise of the
police power over local trade and manufacture." 34 Taney's
distinction between the powers of the national and State
governments was too nice to allow the national government
to encroach on the sphere reserved by the States.

In the License Cases Taney interprets the State laws in
question as not interfering with traffic in liquor while it is still
a part of foreign commerce, that is, while it is still in the
hands of the importer for sale in its original package. The
laws act on the retail trade within the State. They affect the
article after it has become a part of the general mass of
property in the State. Taney lays down a rule which estab-
lishes the complete independence of the State, in the exercise

83 7 Howard, 477. M 247 U. S. 273-74 (1917).

EXTENSION OF THE POLICE POWER 133

of its police power, to enact legislation affecting traffic in
articles after they have ceased to be a part of foreign com-
merce, even though such legislation may take all the profits
out of importation. He says.

These laws may, indeed, discourage imports, and diminish the
price which ardent spirits would otherwise bring. But although a
State is bound to receive and to permit the sale by the importer of
any article of merchandise which Congress authorizes to be im-
ported, it is not bound to furnish a market for it, nor to abstain
from the passage of any law which it may deem necessary or
advisable to guard the health or morals of its citizens, although
such law may discourage importation, or diminish the profits of
the importer, or lessen the revenue of the general government.
And if any State deems the retail and internal traffic in ardent
spirits injurious to its citizens, and calculated to produce idleness,
vice, or debauchery, I see nothing in the constitution of the United
States to prevent it from regulating and restraining the traffic, or
from prohibiting it altogether, if it thinks proper. 35

The spirit of these statements is the same as that of Mr.
Justice Holmes when he says in Erie Railroad Company v.
Board of Public Utility Commissioners et al. y "To engage in
interstate commerce the railroad must get on to the land and
to get on to it must comply with the conditions imposed by
the State for the safety of its citizens. ... If the burdens
imposed are so great that the road cannot be run at a^profit
it can stop, whatever misfortunes the stopping may pro-
duce." 36

One of the license laws involved was a New Hampshire
statute prohibiting the sale of distilled liquor without a li-
cense from the officials of the town in which the liquor dealer
lived. The plaintiffs in error in this case had imported a
barrel of liquor from Boston and sold it in the cask in which
it was imported, without a license. In discussing this case

85 5 Howard, 577. ^ 254 U. S. 411 (1920)*

134 ROGER B. TANEY

Taney said that the power of Congress to regulate interstate
commerce was coextensive with its power to regulate foreign
commerce. The question at issue was whether a State is pro-
hibited by the Constitution of the United States from making
any regulations of foreign or interstate commerce "although
such regulation is confined to its own territory, and made for
its own convenience or interest-, and does not come in conflict
with any law of Congress. In other words, whether the
grant of power to Congress is of itself a prohibition to the
States, and renders all State laws upon the subject null and
void." 37 The Court were divided on that question. Taney
thought that a mere grant of power to the federal govern-
ment could not be construed as an absolute prohibition to the
States to legislate on the same subject. After acknowledging
that Congress had "the controlling and supreme power 35 over
interstate and foreign commerce he said, "Yet, in my judg-
ment, the State may nevertheless, for the safety or con-
venience of trade, or for the protection of the health of its
citizens, make regulations of commerce for its own ports and
harbours, and for its own territory 5 and such regulations are
valid unless they come in conflict with a law of Congress." 38
He backed this contention by pointing to the language of the
Constitution and to State laws which had been passed, and by
referring to the previous decisions of the Court. 39

Taney* s Definition of Police Power

It had been contended in the argument before the Court that
quarantine and health laws were passed by the States by
virtue of their police powers and not by virtue of a power to
regulate commerce. Taney disagrees with this interpretation
of the police power, and gives it a broad definition. He says,
But what are the police powers of a State? They are nothing
more or less than the powers of government inherent in every sov-
37 5 Howard, 578. * Ibid., B79- Ibid., 579-81.

EXTENSION OF THE POLICE POWER 135

ereignty to the extent of its dominions. And whether a State
passes a quarantine law, or a law to punish offences, or to establish
courts of justice, or requiring certain instruments to be recorded,
or to regulate commerce within its own limits, in every case it
exercises the same powers; that is to say, the power of sovereignty,
the power to govern men and things within the limits of its do-
minion. It is by virtue of this power that it legislates; and its
authority to make regulations of commerce is as absolute as its
power to pass health laws, except in so far as it has been restricted
by the constitution of the United States. 40

Taney thus makes police power synonymous with the
reserved powers of the States. It Is the power Inherent In
sovereignty, which in the United States resides in the States
except as it is abridged by the federal Constitution. Since
the Civil War there has not been so much talk of the sov-
ereign powers of the States, and the Fourteenth Amendment
by Its "due process of law" limitation on State power has
affected the development of the conception of police power.
There has been a tendency to try to give the police power a
more specific definition than Taney's. In spite of these facts
Taney's definition has been widely quoted in modern cases.
As modern attempts at definition of the police power are en-
larged to cover new and varied subjects of legislation, they
approximate more closely Taney's broad inclusive definition.
The usefulness of Taney's definition, and its continuing
influence on the development of the law, is indicated by the
number and the character of the decisions in which it has been
quoted or cited. For example, it has been quoted, upholding
a State law designed to prevent the maintenance of sweat-
shops, 41 upholding the right of a State to regulate rates of
public service corporations/ 2 upholding the levying of a

"ibid., 583.

41 State v. Hyman, $7 Atlantic, 6, 9 (McL 1904).

43 St. Louis Southwestern Ry. Co. v. Aliens e al. 3 187 Fed., 290-97 (1911).

ROGER B. TANEY

drainage tax/ 3 upholding a State law preventing the passage
of sewage into streams used for drinking water, 44 and up-
holding a State law regulating prices charged by grain ware-
houses. 45 It was quoted in 1934 in the Court's decision in
the case of Nebbia v. New York, upholding a State law fixing
the retail price of milk. 46 In these and in other cases in which
it has been used the broad definition of police power which
Taney wrote into the law has been used by the courts in up-
holding legislation enacted in recognition of changed eco-
nomic and social conditions or in response to an increasing
demand for social justice. 47

Later decisions of the Supreme Court have impaired the
authority of Taney's decision that the State might pass legis-
lation directly affecting interstate commerce as long as it did
not conflict with federal legislation. The Court has accepted
the doctrine that the failure of Congress to legislate on mat-
ters directly affecting interstate commerce is equivalent to a
mandate that It shall be free. Under this principle it was
held that a State could not prevent the importation of liquor
from another State and that it could not prohibit the sale
within its territory of liquor in the original package by a
citizen of another State. 48 As a result of such decisions
Congress enacted legislation to protect the dry States from
interstate shipments of liquor. 49

43 Houck et al. v. Little River Drainage District et aL, 154 S. W. 739-41 (Mo.

1913).

44 City of Durham v. Eno Cotton Mills, 54 S. E. 453-63 (N. C. 1906).
45 ' Munn v. Illinois, 94 U. S. 113 (1876).

46 291 U. S. 524..

47 See also Railroad Commission v. Louisville & N. R. Co., 80 S. E. 327,
332-33 (Ga. 1913)5 State v. Standard Oil Co. et al., 116 S. W. 902, 1019 (Mo.
1909); Waters-Pierce Oil Co. v. State, 44 S. W. 936-40 (Tex. 1898); Laurel
Fork 6f Sand Hill R. Co. v. W. Va. Transportation Co., 25 W. Va., 324, 349-50

(1884).

^Bowman v. Chicago & N. W. Ry. Co., 125 U. S. 465 (1888); Leisy v.
Hardin, 135 U. S. ioo (1890). T. M. Cooley, op. cit., pp. 846-47.

49 Notably the Webb-Kenyon Act. See Charles Warren, The Supreme Court in
United States History, II, 732.

EXTENSION OF THE POLICE POWER 137

Taney's opinion that the liquor traffic within the State was
a legitimate subject of regulatory and restrictive legislation
and that a State might destroy the retail market for imported
goods has had a continuing influence on cases involving police
power legislation. In 1900, the Supreme Court of the
United States quoted Taney in upholding a Tennessee law
prohibiting the sale of cigarettes on similar grounds. 50 The
Supreme Court of Illinois has used the same reasoning in up-
holding a State law directed against the sale or possession of
certain kinds of wild game during specified seasons, whether
the game was killed in the State or shipped in from another
State. 51 The Supreme Court of the United States and
numerous State courts have cited or quoted from Taney's
License Cases decision in upholding various State liquor
laws. 52

Taney's Conception of the Police Power an Outgrowth of his
Doctrine of State Sovereignty

The decision in the License Cases embodied Taney's theory
of the absolute power of the State to legislate in whatever
way its legislators thought would promote the welfare of its
citizens, so long as it did not directly interfere with a consti-
tutional exercise of power by the federal government, or
with the provisions of the Constitution itself. The principles
laid down in that decision have been used to sustain varied
statutes representing legislative attempts to protect the health,
morals, or welfare of citizens. It is a doctrine that allows
wide freedom for social experimentation by the States.

Professor Mott has intimated that Taney was the first
jurist to suggest due process of law as a limitation of the

50 Austin v. Tennessee, 179 U. S. 343-5-

51 Magner v. The People of Illinois, 97 111., 320, 335-36 (1881).

52 E.g. Mugler v. Kansas, 123 U. S. 623, 664 (1887); Niles v. Rhodes, 7
Mich., 374, 384 (1859); Santo, et aL v. The Stale of Iowa, 2 la., 165, 194
(1855); Ex parte Woodward, 61 Southern, 295, 297 (Ala. 1912).

138 ROGER B. TANEY

police power, because in the Dred Scott Case he held the
federal government powerless to bar slavery in the Terri-
tories on the ground that it would take away private property
without due process of law and hence violate the Fifth
Amendment.'"' 3 If it is true that Taney originated the idea
he did it inadvertently. His opinion in the Dred Scott Case
shows that he thought the national government much limited
in its control over the Territories subject to its government
and wholly without any such wide range of power as that
comprehended in the police power of the States. It is prob-
ably fair to assume that had Taney lived to interpret the
Fourteenth Amendment he would have construed it strictly.
It was his practice to construe every constitutional limitation
on a State's freedom of action over its domestic concerns
strictly and with regard for the purposes for which it was
established.

Chief Justice Taney's theory of the broad nature of the
police power and the independence of the States was in har-
mony with the liberal tendency of his time. The States were
enabled to meet new social problems without fear of judicial
disapproval such as would doubtless have met their legisla-
tion in the days of John Marshall's nationalizing court.
While Taney acknowledged the supremacy of national legis-
lation in the proper sphere he did not believe that the Consti-
tution meant the grants of power to the national government
to exercise a crippling influence on the police power reserved
by the States. His decisions are forerunners of modern
liberal police power decisions.

Although Taney in his License Cases 54 decision defined
police power as "nothing more nor less" than the reserved
sovereignty of the States, it is noticeable that the important
cases in which he took part, involving the power of the State

53 Rodney Mott, Due Process of Law, pp. 327-29.

54 5 Howard, 583.

EXTENSION OF THE POLICE POWER

to protect the public health or the public morals or the public
safety or the general welfare, were those involving also either
the contract clause or the commerce power of the national
government. The concept of the police power in action was
being worked out mainly in the conflict between the State
legislation on such matters and the commerce power of the
national government. State laws to prevent pauperism
caused by immigration, 55 to protect the public health by
regulating or prohibiting the liquor traffic, 58 to protect the
public safety and convenience by means of regulations of har-
bor traffic, 57 were all attacked before the Court on the ground
that they interfered with the commerce power of the national
government. In every case of this nature that came before his
Court Taney voted in favor of sustaining the legislation of
the States.

Since the adoption of the Fourteenth Amendment the due
process clause has been applied as a limitation on legislation
which purports to exercise the police power of the States.
Private interests threatened by legislation intended to further
the general welfare have sought protection in the Fourteenth
Amendment. The conflict between due process of law and the
legislative power of the States has led to the further develop-
ment of the concept of the police power. 58 The liberal mem-
bers of the Court have favored a policy of little interference
with the police power of the States. The conservatives have
been very free in declaring such legislation unconstitutional. 59

55 City of New York v. Miln, n Peters, 102 (1837)5 Passenger Cases, 7
Howard, 283 (1849).

58 License Cases , 5 Howard, 554 (1846).

57 Brig James Gray v. Ship John Fraser, 21 Howard, 184 (1858)5 see also
Cooley v. Board of Wardens of the Port, 12 Howard, 299 (1851).

58 Willoughby, op. cit., III, 1765. See also R. A. Brown, "Due Process of
Law, Police Power, and the Supreme Court," Harvard Law Review, XL (1927),
943-68.

50 R. A. Brown, "Police Power Legislation for Health and Personal Safety,"
Harvard Law Review, XLII (1929), 868.

I4O ROGER B. TANEY

The use in our time of due process of law as a limitation
on the police power is not unlike the use before the Civil War
of the contract clause and the commerce power as limitations
on the police power. Two of the dominant objectives of
Marshall, and probably of the other conservatives of the
early period as well, were the maintenance of the sanctity of
private property rights and the establishment of the finality
of judicial interpretation of the law. If Marshall felt that
he needed more support than the Constitution gave him in
protecting property rights, he appealed to natural law. 60 No
one will question the fact that the dominant motive in nearly
all modern decisions against police power legislation is the
desire to protect private property rights. Nor can it be
doubted that the conservatives have a high conception of
judicial supremacy when one recollects that Mr. Justice
Brewer held 41 per cent of the police power legislation that
came before him unconstitutional, that Mr. Justice Peckham
made a similar record, and that Mr. Justice McReynolds is
not far behind them. 61 The conflict between the ideas of the
conservatives and those of such a jurist as Mr. Justice
Holmes, who held that the Fourteenth Amendment should
not be used "beyond the absolute compulsion of its words to
prevent the making of social experiments" by the States, 62 is
essentially the same as the conflict between the ideas of
Marshall and those of Taney.

60 Fletcher v. Peck, 6 Cranch, 135.

61 R. A. Brown, "Police Power Legislation for Health and Personal Safety,"
Harvard Law Review, XLII (1929), 868.

62 Dissenting- opinion in Truax v. Corrigan, 257 U. S. 344 (1921).

VIII
SLAVERY

Taney's Personal Viewpoint

THE CASUAL student of history always thinks of Taney in
connection with the Dred Scott Case. His opinion in that
celebrated case not only aroused the bitter hostility of the
anti-slavery forces of his time, but it has been written up in
the histories in such a way that it leaves the reader with the
impression that Taney was a judicial leader of the pro-slavery
forces. 1 A number of factors contribute to the explanation of
the Court's action in the case. One who is interested in
Taney's part in it must examine evidence of different kinds.
Taney's personal attitude toward slaves and slavery is im-
portant, for whether for good or evil, judges, like the rest of
us, are influenced by personal attitudes and by their own back-
grounds. Taney's other cases involving slavery questions
must be examined for light that they may throw on his theory
of slavery. The political conditions of the time when the
Dred Scott Case was decided must also be taken into con-
sideration.

As we have already noticed, Taney grew up on a slave
tended plantation in Maryland. In time he inherited some
of the family's slaves, but these he soon set free. In 1857 ne
wrote:

I am not a slaveholder. More than thirty years ago I manumitted
every slave I ever owned, except two, who were too old, when they
became my property, to provide for themselves. These two I sup-
ported in comfort as long as they lived. And I am glad to say
that none of those whom I manumitted disappointed my expecta-

1 See T. C. Smith, Parties and Slavery, p. 199; H. W. Elson, History of the
United States of America, IV, 47-49; D. S. Muzzey, The American Adventure^ I,
502; J. Schouler, History of the United States of America, V, 378-81.

[141]

14-2 ROGER B. TANEY

lions, but have shown by their conduc [sic] that they were worthy
of freedom; and knew how to use it. 2

Taney's personal kindness to Negroes with whom he came
in contact is illustrated by two incidents: One in which he
helped a little child, and the other in which he showed his
affection for two old people who had been his faithful servants
for a long time. Tyler relates that, while Taney was Attor-
ney General of the United States, one cold morning as he
was hurrying to his office he saw a little Negro girl trying
vainly to pump some water into her pail. When the Attor-
ney General saw the little girl shivering in the wind he
pumped her water for her, put the bucket on her head, and
said, "Tell whoever sent you to the pump, that it is too cold
a morning to send out such a little girl." 3 The other incident
referred to took place many years later. In 1860 Taney had
some large-sized photographs of himself taken. He ordered
two of them put into gilt frames, one for his old Negro man-
servant, and the other for his old Negro servant-woman.
These pictures were presented, as Taney wrote at the bottom
of each, "as a mark of my esteem," and signed "R. B.
Taney." 4 In ,uch incidents one sees the influence of Monica
Taney.

On one occasion Taney is reported to have said to an
acquaintance, "Thank God that at least in one place all men
are equal, in the church of God. I do not consider it any
degradation to kneel side by side with a negro in the house
of our Heavenly Father." 5

In 1819 Taney, then practicing law in Frederick, de-
fended Reverend Jacob Gruber, Methodist Abolitionist who
had strongly condemned slavery to a camp meeting audience

2 To Samuel Nott, August 19, 1857, Proceedings of the Massachusetts His-
torical Society, XII, 447.

3 Tyler, op. cit., p. 190.

4 E. S. Taney, "Roger B. Taney," The Green Bag, VII (1895), 362.
5 J. A. Walter, in a letter to The Century Magazine^ IV (1883), 958.

THE INSTITUTION OF SLAVERY 143

composed both of slave owners and slaves, and had been, in-
dicted for seeking to incite slaves to rebellion. 6 The fact that
Taney was attorney for an Abolitionist does not, in itself,
indicate anything about his personal attitude toward slavery . 7
However, in his plea to the jury in this case Taney used lan-
guage which seems to reveal his own opinions on the subject.
After defending Reverend Gruber's right to free speech
Taney said:

Mr. Gruber feels that it Is due to his own character, to the
station which he fills . . . not only to defend himself from this
prosecution, but also to avow, and to vindicate here, the principles
which he maintained in his sermon. There is no law which for-
bids us to speak of slavery as we think of it. ... He did rebuke
those masters, who, in the exercise of power, are deaf to the calls
of humanity; and he warned them of the evils they might bring
upon themselves. He did speak with abhorrence of those reptiles
who live by trading in human flesh, and enrich themselves by
tearing the husband from the wife, the infant from the bosom of
the mother; and this, I am instructed, was the head and front of
his offending. Shall I content myself with saying he had a right
to say this? that there is no law to punish him? So far is he from
being the object of punishment in any form of proceeding, that
we are prepared to maintain the same principles, and to use, if
necessary, the same language here, in the temple of justice and in
the presence of those who are the ministers of the law. A hard

6 Tyler, op. cit., pp. 123-27.

7 Gustavus Myers, Socialist historian of the Supreme Court, condemns Taney
for his work as attorney for John Gaoding, an alleged slave-trader, m United
States v. Gooding t 12 Wheaton, 4.60 (1827). Gooding's attorneys successfully
based the defense largely on technicalities. Myers says Taney's part in this case
won the high regard of the slave owners, and was one thing that "caused them to
push him forward later for Attorney-General of the United States, Secretary of the
Treasury, and then for the Chief Justiceship of the Supreme Court of the United
States." G. Myers, History of the Supreme Court of the "United States, p. 365.
Taney's work in this case is offset by the fact that in 1809 he tried to secure the
freedom of a negro accused of the rape of a white girl, largely on technicalities.
Burke v. State, z Harris & Johnson, 426 (Md.). See Steiner, op. cit., pp. 65-66.
As a matter of fact neither case indicates anything about Taney's own views on
slavery. He was merely serving as a lawyer for the defense in both instances.

144 ROGER B. TANEY

necessity, indeed, compels us to endure the evil of slavery for a
time. It was imposed upon us by another nation while we were
yet in a state of colonial vassalage. It cannot be easily or suddenly
removed. Yet, while it continues, it is a blot on our national
character 5 and every real lover of freedom confidently hopes that
it will effectually, though it must be gradually, wiped away, and
earnestly looks for the means by which this necessary object may
be best attained. 8

Years later, in 1857, Taney wrote a letter to Reverend
Samuel Nott, who had written a pamphlet on slavery, which
reveals something of his attitude at that time. It should be
kept in mind that this letter was written when the controversy
over the slavery question was at its height. Opinions on the
subject of slavery had changed much in both North and South
since 1819. Fire eaters in both sections were busily stirring
in the caldron that was soon to boil over in war. In his letter
Taney takes a realistic view of the problems that faced the
southern slave owner.

He said, "Every intelligent person whose life has been
passed in a slaveholding State, and who has carefully ob-
served the character and capacity of the African race, will
see that a general and sudden emancipation would be abso-
lute ruin to the negroes, as well as to the white population."
He asserts that Maryland and Virginia have given every facil-
ity for the emancipation of Negroes of an age and condition
of health to support themselves, and that manumissions were
numerous before "the present excitement." "And in the
greater number of cases that have come under my observa-
tion, freedom has been a serious misfortune to the manumitted
slave; and he has most commonly brought upon himself
privations and sufferings which he would not have been called
on to endure in a state of slavery. In many cases, however,
it has undoubtedly promoted his happiness." 9

8 Tyler, op. cit., pp. 129-31.

9 Taney to Nott, August 19, 1857, Proceedings of the Massachusetts Historical

THE INSTITUTION OF SLAVERY 145

Then he goes on to discuss the duty of the master toward
his slaves saying,

Unquestionably it is the duty of every master to watch over the
religious and moral culture of his slaves, and to give them every
comfort and privilege that is not incompatible with the continued
existence of the relations between them. And so far as my knowl-
edge extends, this duty is faithfully performed by the great body
of hereditary slaveholders in Maryland and Virginia. , . . And
I know it has been the desire of the statesmen of Maryland to
secure to the slave every protection from maltreatment by the
master that can with safety be given, and without impairing that
degree of authority which is essential to the interest and well being
of both. But this question is a very delicate one, and must at all
times be approached with the utmost caution. The safe and true
line must always depend upon existing circumstances, and they
must be thoroughly inquired into and understood before there can
be any safe or useful legislation in a State. 10

Attempts of the South to better the condition of the
Negroes by humane and intelligent legislation had been
slowed up by the agitation of the Abolitionists. Taney says.

The pains which have unhappily been taken for some years past
to produce discontent and ill-feeling in the subject race, has
rendered any movement in that direction still more difficult. For
it has naturally made the master more sensitive and jealous of any
new restriction upon the power he has heretofore exercised and
which he has been accustomed to think essential to the maintenance
of his authority as master. And he also feels that any step in that
direction at the present time might injuriously affect the minds
of the slaves. They are for the most part weak, credulous, and
easily misled by stronger minds. 11

This was a good presentation of conditions as they existed
among the slaveholders of the upper South. It came from
the pen of a Southerner who had grown up in the midst of
slavery and who, believing slavery wrong, had freed the

w md., P . 446. n /&&

146 ROGER B. TANEY

slaves which he inherited. It was typical of the opinion of
many Southern gentlemen, although the number of those
who thought slavery wrong had decreased almost as fast as
radical Abolitionism had increased. The viewpoint of such
men was naturally different from that of the Northern Aboli-
tionists who also believed slavery wrong, but had had no
experience with it, except perhaps to see an escaped slave in
chains being taken back to servitude.

Taney's views are very similar to those expressed earlier
by Thomas Jefferson. Jefferson was one of the leading
spokesmen of Southern anti-slavery sentiment in the gen-
eration just preceding Taney's. In 1814 Jefferson wrote,
referring to Negro slaves, "My opinion has ever been that,
until more can be done for them, we should endeavor, with
those whom fortune has thrown on our hands, to feed and
clothe them well, protect them from all ill usage, require such
reasonable labor only as is performed voluntarily by freemen,
& be led by no repugnancies to abdicate them, and our duties
to them. The laws do not permit us to turn them loose, if
that were for their good: and to commute them for other
property is to commit them to those whose usage of them we
cannot control." 12 Jefferson thought that emancipation
would come eventually, either by voluntary action of the
slave owners or as a result of armed force. 13 He favored
freeing all slaves born after a certain date, and sending them,
furnished with farming implements and domestic animals, to
St. Domingo or some such place. 14 But the whole problem
of slavery seemed to him very difficult of solution. In 1820
he wrote, "But as it is, we have the wolf by the ears, and we

12 To Edward Coles, August 25, 1814, The Writings of Thomas Jefferson, IX,
479.

13 Ibid., 478.

u "Notes on Virginia," ibid., Ill, 243-445 to Albert Gallatin, December 26,
1820, ibid., X, 178.

THE INSTITUTION OF SLAVERY 147

can neither hold him, nor safely let him go. Justice Is in one
scale, and self-preservation In the other." 15

The bitter fight over the admission of Missouri to the
Union alarmed Jefferson. He said, "But this momentous
question, like a fire bell in the night, awakened and filled me
with terror, I considered It at once as the knell of the Union.
It is hushed, indeed, for the moment. But this is a reprieve
only, not a final sentence." 16 It seemed to him that the ques-
tion involved was not a moral question but merely one of
power. 17 Like Taney he believed slavery wrong and favored
gradual emancipation. Also like Taney, he deplored the
bitter struggle over the question of slavery in the Territories
and feared for its effect on the permanence of the Union.

The Legal Status of Slavery

Taney's official opinions as Attorney General of the United
States and his decisions as Chief Justice of the Supreme Court,
other than the Dred Scott decision, taken as a whole do not
show any bias either for or against slaver}'. Questions in-
volving slavery were decided as legal questions, according to
Taney's general principles of government. They were in
harmony with his decisions on other matters involving the
same principles. This is especially noticeable in the cases in-
volving the power of the States to deal with slavery. In some
slavery cases of a different nature there is not so much oppor-
tunity for comparison with non-slavery cases. In all of them,
Taney's decisions seem to have been a reasonable application
of the laws of the time.

Early in his official career he was twice required to pass on
the status of slaves taken out of the United States and later
brought back. At that time there was a federal law in force
against the importation of slaves into the United States. In

15 To John Holmes, April 22, 1820, ibid., pp. 157-58.

M /fc*., p. 157-

17 To LaFayette, December 26, 1820, ibid., p. 180.

148 ROGER B. TANEY

1831, while he was Attorney General, Taney was asked for
an opinion as to whether a prosecution would lie in the fed-
eral courts against certain citizens who had moved to Texas
(then owned by Mexico) and, before becoming Mexican
citizens, had returned to the United States bringing back with
them the slaves which they had taken when they went to
Mexico. His opinion was that the right to bring back the
slaves did not depend upon the length of time that the parties
had remained in Texas. If they had moved there with a
view to permanent residence the slaves could not lawfully
be brought back into the United States, but if the removal to
Texas was only for a temporary purpose, and the owners had
intended to return in a short while, the slaves might safely
be brought back. 18

During his first term as Chief Justice a case involving a
similar question came before the Supreme Court. 19 An
American woman had visited France, taking her Negro maid
with her. When she returned to the United States she
brought the girl back with her. The ship on which she ar-
rived was libelled in the district court, charged with the
importation of a slave. Taney held that there was nothing
in the law to prevent the woman from bringing her slave back
with her. The law against importing slaves, he said, was
obviously directed against Negroes who were inhabitants of
foreign countries. It could not be applied to colored persons
domiciled in the United States and brought back after a
temporary absence. "In the case before the court, although
the girl had been staying for a time in France, in the service
of her mistress j yet in construction of law, she continued an
inhabitant of Louisiana. . . ." 20

Only a few years later Taney had two opportunities to

18 Official Opinions of the Attorneys General, II, 479-80.
The Garonne (United States v. Garonne) n Peters, 73 (1837).
, pp. 77, 78.

THE INSTITUTION OF SLAVERY 149

pass on cases involving alleged violations of the law against
the slave trade. In both cases he decided against the slave
trader. While he was on circuit a case came before him in-
volving a ship built for the slave trade. He said., "The fair
construction of the act of congress is: That where the criminal
purpose is proved to exist in the owner, or in the factor or
master, who has the direction of the vessel at the time she is
built or fitted out, the forfeiture attaches. . . ."- 1 The ship
was condemned. In the same year he wrote the decision of
the Supreme Court in the case of the United States v.
Morris, 22 holding that a vessel equipped for the slave trade
and on its way to Africa to get slaves was engaged in the
trade, even though no slaves had as yet been taken aboard.

The questions just considered involve aspects of slavery
which do not touch directly on the institution as it existed
within the United States. His decisions in these cases could
have met with no reasonable objection, either from pro-
slavery people or from the anti-slavery group. As we have
already suggested they reveal little of Taney's personal atti-
tude, but simply show that he was judicial in his treatment of
the questions considered. It might be well in this connection,
however, to recall that Taney in 1821, as a member of the
Maryland Senate had voted against the repeal of the law
prohibiting the importation of slaves into Maryland. 23

Taney regarded slavery in the United States as a matter
for the States to regulate, protect, or abolish, as they saw fit.
In 1831, as Attorney General, he upheld the right of a State
to set slaves free as soon as they were brought within its
boundaries. He thought that the federal government could
not interfere with that right. The master's right of property
must depend upon the laws of the State. 24 Later as Chief

21 Campbell's Reports, p. 417 (1840).

22 14 Peters, 464 (1840).

23 Votes and Proceedings of the Senate of Maryland) January IO, 1821, p. 19.
^ Official Opinions of the Attorneys General, II, 475-77.

I5O ROGER B. TANEY

Justice of the Supreme Court he wrote a number of decisions
in which he treated slavery as a matter primarily of State
concern. When a slave claimed freedom on the ground that
his former owner had provided in her will that he should
become free if sold or taken out of the State, and that he had
been sold by the person who inherited him, Taney freed the
slave. In so doing he simply applied the State law. 25 In the
case of Strader et al. v. Graham^ the status of Kentucky
slaves who had from time to time been taken across the
border into Ohio for employment as musicians was in ques-
tion. Taney said.

Every state has an undoubted right to determine the status . . .
of the persons domiciled within its territory; except in so far as
the powers of the states in this respect are restrained, or duties and
obligations imposed upon them, by the Constitution of the United
States. There is nothing in the Constitution of the United States
that can in any degree control the law of Kentucky upon this sub-
ject. And the condition of the negroes, therefore, as to freedom
or slavery, after their return, depended altogether upon the laws
of that state, and could not be "influenced by the laws of Ohio. . . .
The Court of Appeals have determined, that by the laws of the
state they continued to be slaves. And their judgment upon this
point is, upon this writ of error, conclusive upon this court, and
we have no jurisdiction over it. 27

As Attorney General Taney had asserted his belief that
the federal government could not in the exercise of its treaty
making power interfere with the right of a State to deal with
slavery as it saw fit. 28 In 1 841, in a concurring opinion in the
case of Groves v. Slaughter 2 * he held that the federal gov-
ernment could not interfere with slavery in the States by its

^Williams v. Ash, I Howard, I (184.3).

26 10 Howard, 82 (1850).

27 Ibid., 93, 94-

28 Official Opinions of the Attorneys General) II, 476.
**!$ Peters, 449.

THE INSTITUTION OF SLAVERY 1 51

commerce power. In regard to the power of the federal
government to regulate the slave trade between the States,
he said.

In my judgment, the power over this subject is exclusively with
the several states ; and each of them has a right to decide for itself,
whether it will, or will not, allow persons of this description to be
brought within its limits, from another state, either for sale, or for
any other purpose; and also to prescribe the manner and mode in
which they may be introduced, and to determine their condition
and treatment within their respective territories: and the action of
the several states upon this subject cannot be controlled by con-
gress, either by virtue of its power to regulate commerce, or by
virtue of any power conferred by the constitution of the United
States. 30

In 1860, a Kentucky grand jury indicted a free Negro for
helping a slave to escape. The accused had fled to Ohio, so
the governor of that State was requested to arrest him and
turn him over to the Kentucky authorities. This he refused
to do. The State of Kentucky moved for a writ of mandamus
from the Supreme Court commanding the governor of Ohio
to surrender the fugitive. 31 Taney, delivering the decision of
the Court., held that under the interstate rendition clause of
the Constitution it was plainly the duty of the governor to
deliver the fugitive to Kentucky, but there was no constitu-
tional method by which he could be compelled to do it. He
said, "And we think it clear, that the Federal Government,
under the Constitution, has no power to impose on a State
officer, as such, any duty whatever. . . ," 32 Such a power,
he thought, would be inconsistent with the nature of the
Union and incompatible with the dignity of the States.

Thus far Taney's slavery decisions are State's rights de-
cisions. In harmony with his police power decisions., he gives
30 nid., 508.

^Kentucky v. Dennison, 24 Howard, 66 (1860).
32 Ibid., 107.

152 ROGER B. TANEY

to the States complete power to deal with the subject, except
as it may be limited by specific constitutional provisions.
However the Constitution contains one limitation on the
power of the States to settle the status of slaves for them-
selves. It says "No person held to Service or Labour in one
State, under the Laws thereof, escaping into another, shall in
Consequence of any Law or Regulation therein, be discharged
from such Service or Labour, but shall be delivered up on
Claim of the Party to whom such Service or Labour may be
due.' m This was early, and generally, construed to give
Congress power to provide for the return of fugitive slaves. 34
Accepting this view Taney, also in harmony with his decisions
involving other matters, held that the power of the national
government on the subject was supreme and could not be
interfered with.

In 1842, in the case of Prigg v. Pennsylvania?* Mr. Jus-
tice Story delivering the Supreme Court's decision held un-
constitutional a Pennsylvania law interfering with the return
of fugitive slaves. He not only held the State law unconsti-
tutional, but also declared that the power of enacting legisla-
tion providing for the return of fugitive slaves belonged
exclusively to the national government. Chief Justice Taney
concurred with the decision holding the Pennsylvania law
contrary to the Constitution, but he dissented from the opin-
ion that the power to legislate on the subject was exclusive in
the national government. He thought the States were not
prohibited from helping the owner to regain possession of his
property if found in their territory, and in fact it was their

^Article 4, Sec. 2, paragraph 3.

34 The first fugitive slave law was passed in February, 1793. It gave jurisdic-
tion to federal courts, and provided a fine of $500 for anyone obstructing the
return of a fugitive slave. It passed the House of Representatives by a vote of
48 to 7. Annals of the Congress of the United States, Second Congress, 1791-
1793, PP- 861, 1414-15.

^16 Peters, 539.

THE INSTITUTION OF SLAVERY 153

duty to do so. The Constitution "contains no words pro-
hibiting the several states from passing laws to enforce this
right. ?):JG The words of the article would seem to make it
the duty of the several States to pass laws to carry into
execution the compact into which they solemnly entered with
each other.

The constitution of the United States ... is a part of the law of
every state in the Union; and is the paramount law. The right
of the master, therefore, to seize his fugitive slave, is the law of
each state; and no state has the power to abrogate or alter it. And
why may not a state protect a right of property, acknowledged by
its paramount law? Besides, the laws of the different states, in all
other cases, constantly protect the citizens of other states in their
rights of property, when it is found within their respective terri-
tories; and no one doubts their power to do so. And in the
absence of any express prohibition, I perceive no reason for estab-
lishing, by implication, a different rule in this instance. . . , 37

In the case of Ableman v. Booih^ Taney had a chance to
pass on the constitutionality of the fugitive slave law of 1850.
Speaking for a unanimous court he held the law constitu-
tional. However, the main issue involved was not the con-
stitutionality of the law. The Supreme Court of Wisconsin
had ordered a federal prisoner in the State set free on the
ground that the law was contrary to the Constitution. In a
ringing decision notable for its nationalistic tone, Taney de-
nied the right of a State to interfere with the process o the
federal courts. Within its delegated sphere of power the
national government must be supreme, and free from inter-
ference.

**Ibid., 627.

37 Ibid.y 627. This is in harmony with his decision in the License Cases, $
Howard, 573 (1846). In. that decision, speaking of the commerce power, he said,
". . . the mere grant of power to the general government cannot ... be con-
strued to be an absolute prohibition to the exercise of any power over the same
subject by the States." P. 579.

88 21 Howard, 506 (1858).

154 ROGER B. TANEY

We have seen that Taney regarded slavery as an evil in-
stitution, but one which would have to be abolished gradually.
His attitude toward slavery as it touched the law should also
be fairly clear after an examination of the opinions and de-
cisions discussed in this chapter. As it existed, or was pro-
hibited, within a State, slavery was wholly a matter for each
State to deal with as it saw fit. The national government had
no constitutional power to interfere in any way. As to slaves
who fled to free States, the Constitution had authorized the
national government to aid the owner in their capture and
return. In the exercise of this power the national govern-
ment could not constitutionally be hindered in any way by
State legislation. In the exercise of their reserved powers
the States were sovereign 5 in the exercise of its delegated
powers the United States was sovereign. The Constitution
was the supreme law of the land. Its division of powers must
be scrupulously respected.

IX
THE DRED SCOTT CASE

Taney y s Opinion

IN 1857 THE Supreme Court delivered its decision in the case
of Dred Scott v. Sandford 1 holding that Dred Scott was a
slave, that he was not a citizen of the United States, that a
Negro could not be made a citizen, and that the national
government had no power to prohibit slavery" In the Terri-
tories. From the standpoint of technique in interpreting
the Constitution as it was written, Taney's opinion In this case
is one of the best that he ever wrote. To him the task at
hand was simply to ascertain accurately the sovereign will as
written into the Constitution, In order to do that he made a
painstaking study of the conditions in America and In Europe
not only at the time when the Constitution was written but
before. Then he examined the laws of the States and the
national government which would serve as an indication of
the legislative interpretation of the Constitution after it was
written. His decision of the questions Involved in the case
was based on this thoroughgoing historical interpretation of
the Constitution.

Regardless of the soundness or unsoundness of Taney's
interpretations, it seems to us now as we look back that his
opinion was a blunder in statecraft. Designed to allay the
conflict between North and South, the decision only embit-
tered it, and brought the Supreme Court into disrepute In the
dominant section of the country. In this, the only instance
In which the Taney Court held an act of Congress unconstitu-
tional, the Court almost seemed to go out of its way to per-
petuate the inferior status of Negroes. In order to under-

1 19 Howard, 393.

[155]

156 ROGER B. TANEY

stand why Chief Justice Taney, a Jacksonian democrat with a
passionate regard for the interests of the common people, a
personal distaste for slavery, and a consistent record of liberal-
ism, should have been a party to such a decision one has to go
back to the history of the period.

The Historical Background of the Decision

The Dred Scott decision was delivered at a time when the
atmosphere between North and South was dangerously tense.
Newspapers were stirring up the people, Senators and Rep-
resentatives with tempers worn raw were talking openly on
the floors of Congress of the possibility of Civil War. Affairs
in Kansas were the immediate irritant. Slavery and anti-
slavery forces were engaged in a desperate struggle over the
Territory. In Kansas itself Northern partisans were shoot-
ing, and being shot by, Southern partisans.

Ever since the historic debates over the admission of Mis-
souri in 1820 the question of slavery in the Territories and
the admission of new States had been full of dynamite. The
struggle over Missouri had led men to talk of the possibility
of disunion. 2 Jefferson, as we have noted was one of those
who was alarmed for the safety of the Union. In 1850,
another crisis came, to be met with the temporary solution
of the Compromise of 1850. Then came the Kansas question
and the flames were fanned again. Each time the question of
slavery in the Territories and the new States came up, it
brought the country closer to disunion, for the divergence
between the two sections continued to grow wider, and the
possibility of compromise more difScult of achievement.

The Kansas question with all its dangerous implications
was thrust into the presidential campaign of 1856 because the
leaders of the newly formed Republican party, regarding it
as a vote-getting issue in the North, refused to compromise

3 F. J. Turner, Rise of the New West, p. 169.

THE DRED SCOTT CASE I 57

on the question before Congress adjourned in the summer of

that year. 3 The Democratic leaders, anxious to keep the
question out of the campaign., declared that it might lead to
Civil War. Senator Crittenden of Kentucky said,

Do we not hear of preparations all around for feeding this little
civil war in Kansas, sustaining it with money, supplying the parties
with arms, and furnishing men to carry it on? ... Sir, this is
the temper existing in the country at this time, and it tends greatly
to increase apprehension, that while this policy is pursued merely
for the purpose of carrying an election, it may collaterally have
the fatal effect of stirring up civil war in the land. That once
done in Kansas . . . one single spark may light up the whole
atmosphere, and it may spread through this broad land. 4

Senator Seward of New York replied, "Sir, it is not the
character of the north star to change." And referring to the
North of the United States, he continued, "You may resist if
you will, but it will persevere peacefully, if you will suffer
it to do so; but it will persevere constantly, nevertheless, in
the extension of freedom in the Territories of the United
States, and by its example in inducing the southern States to
abolish slavery among themselves." 5

The Republicans made "bleeding Kansas" their chief cam-
paign issue. They resolved in their platform, "That the
Constitution confers upon Congress sovereign power over the
Territories of the United States, for their government, and
that in the exercise of this power it is both the right and duty
of Congress to prohibit in the Territories those twin relics of
barbarism, polygamy and slavery." 6

When the Democrats won the election there was a wide-

3 Smith, op. cit.j p. 161.

* Congressional Globe, 34th Cong., ist sess., pt. 2, August 28, 1856, pp. 58-59.
See also remarks by Senator Benjamin, August 27, 1856, p. 46", and by Senator
Bell, August 29, 1856, p. 71.

5 Ibid., August 28, 1856, p. 61.

8 W. S. Myers, The Republican Party, p. 67.

158 ROGER B. TANEY

spread feeling that disruption o the Union had been nar-
rowly averted. In his last Annual Message to Congress 7
President Pierce expressed his gratitude at the defeat of a
party whose victory would have meant disunion. The people,
he thought, had sustained the Constitution and rebuked sec-
tionalism. Referring to the anti-slavery agitation he said:

. . . associations have been formed in some of the States of indi-
viduals who, pretending to seek only to prevent the spread of the
institution of slavery into the present or future inchoate States of
the Union, are really inflamed with desire to change the domestic
institutions of existing States. . . . They are perfectly aware that
the change in the relative condition of the white and black races
in the slaveholding States which they would promote is beyond
their lawful authority . . . the only path to its accomplishment is
through burning cities, and ravaged fields, and slaughtered popula-
tions . . . and that the first step in the attempt is the forcible
disruption of a country . . . transforming the now peaceful and
felicitous brotherhood into a vast permanent camp of armed men
like the rival monarchies of Europe and Asia. 8

This message started bitter argument in the Senate. Sen-
ator Trumbull of Illinois criticized the President because at
one point in his message he had asserted that the Missouri
Compromise was unconstitutional. The Senator declared that
the Supreme Court had said in so many words, in the case of
American Insurance Company v. Canter* "that in regard to
the Territories of the United States Congress possesses all the
powers both of the Federal and State Governments as to a
State. 3710 This, he said, meant that Congress had power to
keep slavery out of the Territories. 11

The Southerners were afraid that the agitation against

7 Richardson, V, 397-417. The message was read to Congress December 2,
1856.

9 Ibid., 398-99. 9 i Peters, 546 (1828).

la Congressional Globe 3 34th Cong., 3rd sess., December 2, 1856, p. 15.

^Ibid. 3 pp. 15-16.

THE DRED SCOTT CASE 1 59

slavery in the Territories was merely the beginning of an at-
tempt at the eventual abolition of slavery in the southern
States/ 2 an attempt that could lead only to disunion. Senator
Mason of Virginia was inspired with hope because in the elec-
tion some of the northern States had united with the South
"in keeping out of power a party whose success must neces-
sarily have torn this Union into fragments." 13 A Senator
from Alabama said, "They say they wish not to interfere with
slavery in the States! . . . That may be true; but if agitation
in regard to slavery in the Territories is to be carried on in
these Halls for the purpose of destroying the peace and quiet
of the country, they know the ultimate design is to affect this
Government and this Union." 14

Such was the setting when Dred Scott asked for his free-
dom, raising in his plea the question of the status of slavery
in the Territories. The lawyers of this obscure Missouri
Negro raised questions which agitated again the issues which
had brought on a national crisis. The case required cautious
handling if it was not to widen the breach between the oppos-
ing sections. It required almost superhuman wisdom more
than the Court had.

The Facts in the Case

The facts in the case were as follows: 15 In 1834, Dred Scott
was a slave belonging to Dr. Emerson, a surgeon in the
United States army. In that year Dr. Emerson took him
from Missouri to the military post at Rock Island, Illinois,
and held him there as a slave until the spring of 1836. Then
he took him to a military post in the Louisiana Territory
north of 36 30' and held him in slavery until 1838. In
1838 Dr. Emerson brought Scott back to Missouri, Before

13 See remarks of Senator Brown of Mississippi, December 2, 1856, pp. 11-12,
14-15.

18 Ibid.y December 2, p. 13.

14 Ibid., December 4, 1856, p. 24 (Senator Fitzpatrick).

15 Dred Scott v. Sandford, 19 Howard, 397-98 (Dec. term 1856).

l6o ROGER B. TANEY

the commencement of the suit Scott was sold to John F. A.
Sandford. Scott first brought suit for his freedom in a State
court in Missouri. When the case it-cached the State supreme
court they held that he was not entitled to freedom. His
attorneys then brought a suit for his freedom in the United
States Circuit Court, and the case came from that court to
the Supreme Court of the United States.

The case was first argued before the Supreme Court in
the spring of 1856. At that time the justices disagreed as to
whether the question of Dred Scott's eligibility to sue in a
federal court was involved. The case was reargued at the
next term and the majority at that time decided that the
question was not before them for consideration. The justices
also discussed in conference the question as to whether or not
the plaintiff's residence in territory north of 36 30', sup-
posedly closed to slavery by the Missouri Compromise, had
liberated him. They decided that this act of Congress did
not \ liberate Dred Scott under the particular circumstances,
and also that it was inoperative to free a slave in any case.
The majority decided that the Court's decision should be
limited to the particular circumstances of Dred Scott's case.
The question of the constitutionality of the Missouri Com-
promise provision for the abolition of slavery in the northern
Territory was to be left untouched. Mr. Justice Nelson was
selected to write the Court's opinion. 16 Unfortunately, this
decision was not adhered to.

Mr. Justice McLean let his colleagues know that he was
going to write a long dissent giving his opinion and argu-
ments on the Missouri Compromise and the right of a Negro
to sue in the federal courts. 17 Justice McLean wanted to be

16 Justice Campbell to S. Tyler, 1870, Tyler, op. cit. } pp. 382-84. Justice
Grier to Buchanan February 23, 1857, The Works of James Buchanan, edited by
J. B. Moore, X, 106-8 note.

1T See Justice Grier's letter to Buchanan, February 23, 1857, The Works of
James Buchanan, X, 107 note.

THE DRED SCOTT CASE 1 6 1

president of the United States. It is said that a man who is
once stung by the presidential bee never wholly recovers.
This would seem to have been true in the case of McLean,
He had been in a receptive mood since i833. 18 He tried un-
successfully to get the Republican nomination in i856. 19 He
was to try again in i86o. L>0 His action in the Dred Scott case
may be taken as that of a candidate for the Republican
nomination.

McLean's proposed action^ and the fact that Justice Curtis
also proposed to write a far-flung dissent^ caused the majority
to change their minds as to the nature of their decision. They
decided to embody in it a discussion of all the questions in-
volved in the case, including the question of the constitu-
tionality of a congressional prohibition of slavery in the Ter-
ritories, and Chief Justice Taney was delegated to write the
opinion. 21

The Question of Jurisdiction

In his opinion he first considered the question of whether the
federal courts had jurisdiction over the case. In this connec-
tion he discussed exhaustively the nature of American citizen-
ship and how it is obtained. He then examined the facts in
the case to see if they entitled Scott to freedom, coming to
the conclusion that neither his stay in the northern Territory
nor his residence in Illinois had made him free.

In discussing the question of jurisdiction, Taney pointed
out that the federal courts of the United States do not, as do

^Ambrose Spencer wrote to Henry Clay, December 14., 1833, "From present
appearances the contest on the part of our adversaries will be between Van Buren,
Judge M'Lean, and Mr. Cass. . . . M'Lean's judicial course has been Jesuitical
and trimming, and it will be a strong objection to him that he enters the arena
with the robes of office on." The Private Correspondence of Henry Clay> edited
by Calvin Colton, p. 372.

19 W. S. Myers, op. cit., pp. 64-65.

20 C. A. and M. R. Beard, Tke Rise of American Civilfaati(>n t II, 19.

21 Justice Campbell to Tyler, 1870, Tyler, op. /,, p. 3845 Justice Grier to
Buchanan, February 23, 1857, The Works of James Buchanan, X, 107,

1 62 ROGER B. TANEY

English and American State courts, presume that they have
jurisdiction over cases brought before them. The cases in
which they have jurisdiction are specified, and when a person
brings suit he must show that his suit is within the jurisdiction
of the court. If he seeks to bring suit in a federal court on
the ground that he and the defendant are citizens of different
States, he must show that such is the case. 22

Citizenship in the United States

This brought Taney to the question of Dred Scott's citizen-
ship. As he saw it the question was simply, could a Negro
whose ancestors had been slaves become an American citizen?
Taney thought he could not. It seemed to him that such per-
sons were not meant to be included under the word "citizen"
as it was used in the Constitution. At the time the Constitu-
tion was made they were considered an inferior class of beings
who, whether emancipated or not, had only the rights and
privileges which those who held the power might choose to
give them. Whether this was just or unjust, said Taney, was
not a matter for the Court to deal with. Their business was
to apply the Constitution. 23

Continuing the discussion of the subject he said that if
Negroes were recognized as citizens at the time the Con-
stitution was adopted they would become members of the
new sovereignty created by it. 24 In the opinion of the Court
the legislation and history of the times showed that neither
the Negroes who had been imported as slaves nor their de-
scendants, whether they became free or not, were then re-
garded as part of "the people." Neither was the language
of the Declaration of Independence meant to apply to them.
Their status in the period when the Declaration of Inde-
pendence and the Constitution were written was convincing
evidence of that. Taney painted a vivid picture of it.

22 Dred Scot V. Sandjord, 19 Howard, 401-2.

28 Ibid.) 404-5. ^ Ibid.y 406.

THE DRED SCOTT CASE 163

It is difficult at this day to realize the state of public opinion in
relation to that unfortunate race, which prevailed in civilized and
enlightened portions of the world at the time of the Declaration of
Independence, and when the Constitution of the United States
was framed and adopted. But the public history of every Euro-
pean nation displays it in a manner too plain to be mistaken.

They had for more than a century before been regarded as
beings of an inferior order, and altogether unfit to associate with
the white race, either in social or political relations; and so far
inferior, that they had no rights which the white man was bound
to respect; and that the negro might justly and lawfully be reduced
to slavery for his benefit. 25

Taney said that this view of the status of Negroes was
impressed upon the colonies by England. As evidence that
it* was the view of the colonists, he cited laws against inter-
marriage between whites and blacks in Maryland and Mas-
sachusetts at the time of the American Revolution. To him
these laws showed u that a perpetual and impassable barrier
was intended to be erected between the white race and the
one which they had reduced to slavery . . . and which they
looked upon as so far below them . . . that intermarriages
. . . were regarded as unnatural and Immoral, and punished
as crimes, not only in the parties, but in the person who joined
them in marriage." And no distinction was made between
free Negroes and slaves "but this stigma, of the deepest
degradation, was fixed upon the whole race." 26

That the States did not consider Negroes citizens after the
Union was formed was evidenced by their court decisions and
by the acts of their legislatures. In 1822, the Court of Ap-
peals of Kentucky decided that free Negroes were not citizens
within the meaning of the Constitution of the United
States. 27 Courts in Tennessee and Connecticut announced the
same doctrine. 28 Laws discriminating against Negroes were

25 ibid., 4.07.

27 md., 4.1 3.

164 ROGER B. TANEY

in force in Massachusetts., Connecticut, New Hampshire, and
Rhode Island. 29 Even the national government had dis-
criminated against them in the charter of the District of Co-
lumbia as late as i820. 30 To Taney it seemed that persons
so discriminated against could not have been regarded as
members of the sovereign body politic, and he said:

The legislation of the States therefore shows, in a manner not
to be mistaken, the inferior and subject condition of that race at
the time the constitution was adopted, and long afterwards . . .
and it is hardly consistent with the respect due to these States, to
suppose that they regarded at that time, as fellow-citizens and
members of the sovereignty, a class of beings whom they had thus
stigmatized; whom, as we are bound, out of respect to the State
sovereignties, to assume they had deemed it just and necessary thus
to stigmatize, and upon whom they had impressed such deep and
enduring marks of inferiority and degradation ; or, that when they
met in convention to form the constitution, they looked upon them
as a portion of their constituents, or designed to include them in
the provisions so carefully inserted for the security and protection
of the liberties and rights of their citizens. It cannot be supposed
that they intended to secure to them rights, and privileges, and
rank, in the new political body throughout the Union, which every
one of them denied within the limits of its own dominion. 31

Taney thought that Negroes could never be made citizens
under the Constitution as it stood. They could not be made
citizens either by the States or the national government. A
State might give an individual all the rights and privileges of
citizenship within its own boundaries but "he would not be a
citizen in the sense in which that word is used in the constitu-
tion of the United States, nor entitled to sue as such in one o
its courts, nor to the privileges and immunities of a citizen in
the other States." 32 The power of naturalizing foreigners
belongs exclusively to the national government but, said

*> Ibid., 41 3-16. Ibid., 421.

31 ibid., 416. w /***., 405.

THE DRED SCOTT CASE 165

Taney, "It Is not a power to raise to the rank of a citizen any
one born in the United States, who, from birth or parentage,
by the laws of the country, belongs to an Inferior and subor-
dinate class." 33 The States had surrendered the power to
admit new members Into the sovereignty, and the national
government had been given power to admit only aliens.
Emancipated Negroes were thus condemned to stand outside
the pale, as long as the Constitution remained unchanged.

Slavery in the Territories

The question of Dred Scott's right to sue was raised In a plea
in abatement. There was doubt In the minds of some of the
justices as to whether the question was legally before the
Court. After he had decided that Scott was not a citizen of
Missouri, and hence not entitled to sue in the federal courts
on the basis of his citizenship, Taney said, "but if that plea is
regarded as waived, or out of the case . . . yet the question
as to the jurisdiction of the circuit court is presented on the
face of the bill of exception itself. . . ." 34 He then pro-
ceeded to discuss the facts of the case, considering first the
effect of Dred Scott's stay in the Louisiana Territory north
of thirty-six degrees and thirty minutes on his status as a
slave.

The main question in this connection was the constitution-
ality of the act of Congress which had prohibited slavery in
the Louisiana Territory north of thirty-six degrees and thirty
minutes north latitude. This provision had been embodied
in what is generally known as the Missouri Compromise.

Dred Scott's attorneys had claimed that Congress had
power to abolish slavery in the Territories because of the
article in the Constitution which confers on Congress power
"to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the

88 Ibid., 417- */***., 427.

1 66 ROGER B. TANEY

United States." 35 In the judgment of the Court, said Taney,
"that provision has, no bearing on the present controversy,
and the power there given, whatever it may be, is confined,
and was intended to be confined, to the territory which at that
time belonged to, or was claimed by the United States, and
was within their boundaries as settled by the treaty with
Great Britain, and can have no influence upon a territory
afterwards acquired from a foreign government. It was a
special provision for a known and particular territory, and to
meet a present emergency, and nothing more." 36 In order
to establish this interpretation Taney discussed the history of
the period when the article was written, the wording of the
article, and a previous decision of the Supreme Court. 37

His argument is ingenious, and perhaps convincing, if one
assumes that the Fathers did not consider the possibility that
the United States might acquire more territory. This is not
an altogether unreasonable assumption, but to base on it an
interpretation of a clause in the Constitution such as the one
under consideration seems to be carrying the principle of strict
construction rather far.

It would have seemed consistent with this interpretation
to decide that the Constitution did not authorize the federal
government to acquire new territory, but Taney did not go
that far. He said, "The power to expand the territory of the
United States by the admission of new States is plainly given;
and in the construction of this power by all the departments
of the government, it has been held to authorize the acquisi-
tion of territory, not fit for admission at the time, but to be
admitted as soon as its population and situation would entitle
it to admission." 38

He thought that the power to acquire new territory was
necessarily accompanied by the power to govern it. Hence

55 Art. 4, Sec. 3, Paragraph 2. 3e i9 Howard, 432.

* 7 Ibid., 43 2-4-6. * Ibid., 447.

THE DRED SCOTT CASE I 67

Congress could establish whatever government It considered
best for such territory, to preserve it until it was ready for
statehood. 39 But the power of Congress over the person, and
property of citizens in the territory was not discretionary. 40
All the constitutional guarantees of private rights applied
there just as fully as in the States. Congress could not
abridge freedom of religion, of speech, or of the press, nor
deny to the people the right to bear arms or to trial by jury,
nor in any other way assume power denied to it, or not given,
by the Constitution. One of the constitutional safeguards of
individual rights was the provision of the fifth amendment
that no person should be deprived of life, liberty, and prop-
erty, without due process of law. This particular provision it
seemed to him, would prevent Congress from prohibiting
slavery in the Territories. He said, "and an act of congress
which deprives a citizen of the United States of his liberty or
property, merely because he came himself or brought his
property into a particular territory of the United States, and
who had committed no offense against the laws, could hardly
be dignified with the name of due process of law." 41

The Constitutional Status of Property in Slaves

It had been assumed by some that property in a slave was
different from other property. It seemed to Taney an as-
sumption without legal justification. The Constitution was
the supreme law for the United States. The government of
the United States was established, and certain rights of its
citizens were guaranteed, by it. The government could not
go beyond the power granted to it by the Constitution. No
law of nations or reasoning of jurists on slavery or any other
subject could add to the powers of the American government
or take from the citizens the rights they had reserved. "And
if the constitution recognizes the right of property of the
d., 448-49. * ibid., 449- 41 #*-, 450.

1 68 ROGER B. TANEY

master in a slave, and makes no distinction between that de-
scription of property and other property owned by a citizen,
no tribunal, acting under the authority of the United States,
whether it be legislative, executive, or judicial, has a right to
draw such a distinction, or deny to it the benefit of the pro-
visions and guarantees which have been provided for the
protection of private property against the encroachments of
the government." 42

The Constitution, he pointed out, specifically recognized
the right of property in a slave. "The right to traffic in it,
like an ordinary article of merchandise and property, was
guaranteed to the citizens of the United States, in every State
that might desire it, for twenty years. And the government
in express terms is pledged to protect it in all future time, if
the slave escapes from his owner. . . . And no word can be
found in the constitution which gives congress a greater power
over slave property, or which entitles property of that kind to
less protection than property of any other description. 3343

State Laws and Slavery

Having established the fact that Congress had no constitu-
tional power to prohibit slavery in the Territories because
such a prohibition would constitute a taking of private prop-
erty without due process of law, Taney proceeded to consider
the question as to whether or not Dred Scott 3 s stay in Illinois,
a free State, established his freedom.

The latter question did not require much discussion. The
principle had been established in Strader et al. v. Graham^
where slaves had been taken from Kentucky into Ohio and
back again, that the status of the slave depended on the law
of the State that he was in. In the present case Dred Scott's
status in Missouri depended on Missouri law, and not on the
law of Illinois. The Supreme Court of Missouri had decided

43 Ibid., 451. *lbid., 45i 452- u 10 Howard, 82 (1850).

THE DRED SCOTT CASE 169

that he was a slave, and that decision was authoritative in
deciding what was the law of the State. 4 *" 5

Taney decided three things in his opinion: A Negro de-
scendant of slaves could never become a citizen 5 Congress
had no power to prohibit slavery in the Territories; and a
slave taken into a free State for a temporary sojourn is not
necessarily freed as a result, since his status depends on the
law of the State that he is in. The latter point had been
established in a previous case, and could meet with little
objection. The two other principles announced were not only
new so far as decisions of the Supreme Court were concerned,
but they were also more open to objection. The fact that
decision of these issues could have been avoided in this case
lent strength to the objections. It was not necessary for the
Court to decide that Negroes could never be citizens or to
discuss the question of slavery in the Territories. Looking
backward we can see that it would have been wiser for the
Court to have avoided a decision on these highly controversial
questions and to have based its decision solely on Dred Scott's
status under State law. Chief Justice Taney was one of the
majority and although not the leader in the move for a dis-
cussion of these troublesome points, he must share the re-
sponsibility for the Court's action. Since he wrote the main
opinion of the majority he has in fact borne most of the
blame.

The Constitution is the Recognized Expression of the
Sovereign Will

Taney's opinion is conservative and strict constructionist.
Through it the Court proclaims that it will not take into
consideration any change in conditions or attitudes, but will
interpret the sovereign will only as it is constitutionally
expressed. At one point Taney says:

^ Tired Scott v. Sandford, 19 Howard, 4.52-54.

170 ROGER B. TANEY

No one, we presume supposes that any change in public opinion
or feeling, in relation to this unfortunate race . . . should induce
the court to give the words of the constitution a more liberal con-
struction in their favor than they were intended to bear when the
instrument was framed and adopted. ... If any of its provisions
are deemed unjust, there is a mode prescribed in the instrument
itself by which it may be amended ; but while it remains unaltered,
it must be construed now as it was understood at the time of its
adoption. It is not only the same in words, but the same in mean-
ing . . . and as long as it continues to exist in its present form,
it speaks not only in the same words, but with the same meaning
and intent with which it spoke when it came from the hands of its
framers, and was voted on and adopted by the people of the
United States. Any other rule of construction would abrogate the
judicial character of this court, and make it the mere reflex of the
popular opinion or passion of the day. 46

The Explanation for the Breadth of the Decision

As we have already noticed, the immediate reason for the
Court's decision to discuss the question of Negro citizenship
and the constitutionality of the Missouri Compromise was
the fact that Justices McLean and Curtis were going to deal
with these questions in dissenting opinions. Under such cir-
cumstances the majority felt called upon to express their
views.

But one must go farther than that in seeking an explana-
tion for Taney's opinion and the conservative views expressed
in it. Van Buren probably hit upon the truth when he wrote,

I think it more likely that the judges who united in the opinion
that the Missouri Compromise Act was unconstitutional, seeing the
extraordinary revolution which its repeal had produced in the
political and fraternal feelings of the people of the United States,
and sincerely believing the safety of the Union endangered by
continued agitation upon so disturbing a subject, hoped to arrest
46 7^426.

THE DRED SCOTT CASE I'JI

it by the judgment of the Supreme Court upon the point in ques-
tion, a step which, if not actually called for, they yet believed
fully justified by the case before them. 47

Mr. Justice Grier ? writing to President-elect Buchanan,
February 23, 1857, apparently referring to the question of
the constitutionality of legislation barring slavery from the
Territories, said that he and Mr. Justice Wayne and the
Chief Justice "concur in your views as to the desirableness at
this time of having an expression of the opinion of the court
on this troublesome question. 5 ' 48 The country seemed on the
verge of civil war. The question of slavery in the Territories
was the outstanding cause of dissension. It had been a dan-
gerous irritant since 1820, until now it seemed to have
brought the Union to the verge of dissolution. Taney and
his colleagues may reasonably have thought that by a judicial
decision on the question they could remove it once and for
all from the discussions of partisan politics.

One must remember in this connection that Taney's view-
point is that of a man from the upper South. The Aboli-
tionists had preached violent doctrines, and the Republican
party seemed to be taking over their program. Southerners
looked beyond the asserted desire of the Republicans to bar
slavery from the Territories and feared that they would
eventually seek to destroy it in the States. The national
government had no constitutional power to abolish slavery in
the States, but the question had assumed a moral aspect, and
those who are engaged in a holy war stop at nothing. In his
opinion Taney spoke as one who seeks to preserve established
rights and the spirit of the Constitution. The growth and
the aggressive tactics of the anti-slavery party had the south-
erners feeling that their backs were against the wall and their

47 M. Van Buren, Inquiry into the Origin and Course of Political Parties^
p. 362.

48 The Works of James Buchanan, X, 106-7.

ROGER B. TANEY

prosperity threatened and they were ready to fight when the
issue was definitely made. Taney sought to save the Union
by protecting property rights guaranteed in the Constitution.
He proposed to settle the question by law and thus to prevent
an appeal to arms. His spirit in this decision is that o Ed-
mund Burke. Burke had a reverence for British political in-
stitutions and the established rights of Englishmen which
amounted almost to a religion. Something of this feeling,
with an American setting, was reflected in the Dred Scott
decision where Taney was speaking for established institutions
and established rights, and for orderly constitutional change
if change must come. This is interestingly illustrated in a
supplement which he wrote to the Dred Scott case in which
he spoke of the American Revolution as a conservative revolu-
tion, much as Burke had justified the English revolution of
1688 on conservative grounds.

After asserting that the Declaration of Independence was
not meant to include slaves Taney said:

The American Revolution was not the offspring of fanaticism,
nor was it produced by the wild theories of political dreamers. It
was not designed to subvert the established order of society and
social relations, nor to sweep away traditional usages and established
opinions. On the contrary, it was undertaken to maintain ancient
and established rights which had been invaded by the British Gov-
ernment. The colonists claimed the rights of Englishmen, as
secured by magnet, carta and the principles upon which the British
Government was founded. They did nothing more. . . . The
Declaration of Independence was intended to preserve their an-
cient and established rights and privileges, and not to upturn their
own social institutions and domestic relations. It was in fact in-
tended as a conservative measure, and not as revolutionary, nor
was it adopted in passion, but carefully, calmly, and deliberately
considered. 49

49 Tyler, op. ctf., p. 600.

THE BRED SCOTT CASE 173

In the Dred Scott opinion Taney spoke as a lawyer. He
endeavored to settle by judicial decision what debate in Con-
gress and on the hustings could not settle but only disturb.
He tried to avert the revolutionary disruption of a social and
economic system. He was playing for high stakes, he played
his trump card to maintain the old constitutional arrange-
ments and prevent disunion and he failed.

Public 0-pinion on the Decision

The decision raised a storm of protest in the North. The
New York Tribune speaking editorially said, "The decision,
we need hardly say, is entitled to just so much moral weight
as would be the judgment of those congregated in any Wash-
ington bar-room. 5550 And a few days later, "It is the election
of Mr. Buchanan which has emboldened our five slaveholding
Judges to volunteer this extra-judicial proclamation of bar-
barism and inhumanity as the staple of the United States
Constitution. . . ." 51

The legislature of Maine passed a resolution, "That the
extra-judicial opinion of the Supreme Court of the United
States, in the case of Dred Scott, is not binding, in law or in
conscience, upon the government or citizens of the United
States, and that it is of an import so alarming and dangerous,
as to demand the instant and emphatic reprobation of the
country." 52 The legislatures of Vermont, Ohio, and New
York passed similar resolutions. 53

In the Senate, William H. Seward made a bitter attack
on the decision accusing the president and the justices of con-
spiring to fasten slavery on the Territories. He denied the
Court's decision had any validity, except as it applied to the
immediate case. And he voiced the threat, "Let the court

50 March 7, 1857. w March 13, 1857.

53 E. W. R. Ewing, Legal and Historical Status of the Dred Scott Decision,

p. 195-

lbid.; pp. 189-94; The Case of Dred Sco$t in the Untied States, p. 104,

174 ROGER B. TANEY

recede. Whether it recedes or not, we shall reorganize the
court, and thus reform its political sentiments and practices,
and bring them into harmony with the Constitution and with
the laws of nature." 54

The South, on the other hand, hailed the decision as wise
and just, and called on the nation to accept it as establishing
the law. The Richmond Enquirer was typical of this view-
point when it said, "Thus has a politico-legal question, involv-
ing others of deep import, been decided emphatically in favor
of the advocates and supporters of the Constitution and the
Union, the equality of the States and the rights of the South,
in contradistinction to and in ; ' repudiation of the diabolical
doctrines inculcated by factionists and fanatics; and that too
by a tribunal of jurists, as learned, imjpartial and unprejudiced
as perhaps the world has ever seen. 7 ' 53 Three days later it
said, "The decision in the Dred Scott case must be a finality,
so far as federal legislation on the institution of slavery is
concerned. . . . Abolitionism must now unmask, and wage
its warfare openly and above board against the government
$er se } or bow to its behests and pass off the stage." 56

Taney's ppinion was not only bitterly attacked in the
North, but it was also widely misrepresented. It was pro-
claimed that he had stated it as his own opinion that Negroes
had no rights which white men were bound to respect. 57
This was, of course, not true. Yet even the New York legis-
lature adopted a report containing such an assertion. 58

As Taney watched the storm clouds swirl, while the
lightning flashed around his head and the thunder rolled and
reverberated, it reminded him of the Bank struggle of years
before. In August he wrote to Franklin Pierce, "You see I

54 Congressional Globe, March 3, 1858, p. 943.

53 March 10, 1857. w March 13, 1857.

57 Mary F. Taney, "Roger Brooke Taney," Records of the American Catholic
Historical Society, XI, 39.

58 The Case of Dred Scott in the United States, p. 104.

THE DRED SCOTT CASE 175

am passing through another conflict, much like the one which
followed the removal of the deposits, and the war Is being
waged upon me in the same spirit and by many of the same
men who distinguished themselves on that occasion by the
unscrupulous means to which they resorted." But the criticism
of his enemies was to him a relatively minor matter when he
followed the path which he considered right, so he added,
"And I have an abiding confidence that this act of my judicial
life will stand the test of time and the sober judgment of the
country, as well as the political act of which I have spoken." 59

The Function of the Court as an Interpreter of the
Sovereign Will

A writer in one of the legal periodicals suggested a good
many years ago that Taney's opinion regarding the political
status of Dred Scott was in keeping with the sentiment of a
majority of the people of his time, and that "In being led by,
instead of leading the moral sentiment of the times and of
the country in which he lived, Judge Taney did what the
judiciary are doing now, and what, with rare exceptions, they
have done in every age." co

Taney did not regard it as the function of the Supreme
Court to lead the moral sentiment of the times. To him the
Court was only an agent of the sovereign whose duty it was
to apply the sovereign will as constitutionally expressed. If
the Constitution as written contained something which ought
to be changed there was a method provided by which it could
be changed, but that method was by constitutional amend-
ment, not by judicial or legislative assumption of the people's
power. In the Dred Scott case he was not concerned with
the morality of slavery but with its legality. Finding slavery
sanctioned by the Constitution he applied to it the same rules

50 August 29, 1857, American Historical Review, X (1904-1905), 359,
w "Roger B. Taney," The Chicago Law Times, II, 327.

176 ROGER B. TANEY

that would be applied to any other kind o property. And
there cannot be much doubt that his application of the due
process clause to prevent the abolition of slavery in the Ter-
ritories would have met with little objection had the property
in question been any other than human slaves. Mr. Justice
Holmes not so long ago wrote into one of his decisions a
warning which might well have been included in the Dred
Scott opinion, when he said, "The general rule at least is,
that while property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking. . . .
We are in danger of forgetting that a strong public desire to
improve the public condition is not enough to warrant the
achieving the desire by a shorter cut than the constitutional
way of paying for the change." 61

The only objection which the student of political science
or constitutional law can have to Taney's opinion is that it
was unnecessary for the Court to deal with all the questions
that were discussed. But the masterful art of evading issues,
sometimes an attribute of statesmanship, was not one of
Taney's strong points. He thought he saw the Union and
the Constitution endangered by the question of slavery in the
Territories, Believing that the whole controversy could be
settled by constitutional law he wrote an opinion so thor-
oughly and so logically worked out that he must have meant
it to establish the meaning of the sovereign will so clearly
that it would not again be called in question.

^Pennsylvania Coal Co. v. Mahon et al. f 260 U. S. 415-16 (1922).

X
INDIVIDUAL RIGHTS

The Legal 'Nature of Individual Rights

THAT TANEY was not a radical Individualist is evidenced by
his views of the police power which a State might exercise
over its citizens, and by his decisions upholding national laws
and court processes. That he was a democrat is evidenced by
his part in the Bank struggle and his views expressed during
that period. He believed in the sovereignty of the whole
people and the supremacy of the law. He never asked
whether a statute conformed to the laws of nature or not.
He was concerned only with its constitutionality. When the
rights of individuals were involved he went not to the law
of nature, but to the Constitution, to find them defined. Hav-
ing found them there defined, he could conceive of no legit-
imate interference with them, save by the regular process of
constitutional amendment. The Constitution was to him the
supreme law of the land, binding alike on governors and
governed.

During the course of his legal career Taney was connected
with cases involving the right of free speech, the right of
private property threatened in wartime, and the right to a
writ of habeas corpus and a speedy and public trial by a jury.
In each of these cases, from the time when he defended a
Methodist minister's right to freedom of speech, until as an
aged Chief Justice he delivered his memorable opinion in the
case of Ex farte Merryman* he stood with almost religious
zeal for individual rights as established by constitutional law.
The rights involved are particularly significant in English
law and particularly cherished by English speaking peoples.

1 Campbell's Reports, 254. (1861).

178 ROGER B. TANEY

He" takes his ground in the tradition of Pitt and Burke and
the other great leaders who defended the constitutional rights
which Englishmen had won at great cost in a long struggle
with reluctant kings.

Free S-peech

Taney's first important case in this group was that involving
Reverend Jacob Gruber's right to freedom of speech in 1819,
a case already alluded to in connection with the discussion of
Taney's views on slavery. Reverend Gruber, a Methodist
minister from Pennsylvania, delivered a sermon to a camp
meeting in Washington County, Maryland in which he
strongly condemned the institution of slavery. 2 In view of
the fact that a considerable proportion of his audience were
slaves, his language was regarded, not without reason, as be-
ing highly incendiary. He was indicted and charged with
preaching this sermon with the intent of inciting slaves to
insurrection, and for the disturbance of the peace. One of his
friends prevailed on Taney, then recognized as one of the
leading lawyers of Maryland, to appear as his chief counsel. 3
Taney's plea to the slaveholding jury who sat in judgment
on the case of this Pennsylvania Abolitionist is notable for its
boldness. He opened his argument with a defense of free
speech, which is largely quoted in the paragraph that follows.

I need not tell you that, by the liberal and happy institutions of
this state, the rights of conscience and the freedom of speech are
fully protected. No man can be prosecuted for preaching the arti-
cles of his religious creed, unless, indeed, his doctrine is immoral,
and calculated to disturb the peace and order of society; and sub-
jects of national policy may at all times be freely and fully dis-
cussed, in the pulpit or elsewhere without limitation or restraint.
If his doctrines were not immoral, if the principles he maintained
were not contrary to the peace and good order of society, he had an

2 W. P. Strickland, The Life of Jacob Gruber, pp. 136-39.
3 Ibid. j p. 140.

INDIVIDUAL RIGHTS 179

undoubted right to preach them, and to clothe them in such lan-
guage, and enforce them by such facts and arguments as to him
seemed proper. It would be nothing to the purpose to say that
he offended, or that he alarmed some ? or all of his hearers. Their
feelings, or their fears, would not alter the character of his doc-
trine, or take from him a right secured to him by the constitution
and laws of the state. 4

A lawyer's plea for his client cannot always be taken as
an expression of his personal beliefs- However, in this in-
stance Taney said that he himself was willing to say the same
things Reverend Gruber had said, 5 and as his plea was in har-
mony with statements which he made on other occasions it is
fair to assume that his plea for freedom of speech represents
his own viewpoint. It seems hardly the sort of plea a man
would make to a slaveholding jury if he did not believe what
he was saying.

Taney's defense of the right of free speech rested on the
provisions of the constitution and the laws of the State. He
asserted the complete right, under them, of the individual to
preach his religious doctrines and to discuss political questions.
But the right of free speech was not something absolute to
him. It was a right given by law. It could be limited by
law. There was no right to preach immoral doctrines or to
disturb the peace and order of the community. It is always
difficult to define the limits of free speech in times when the
privilege really means something. Undoubtedly there would
be occasions when it would have been difficult to decide what
words constituted a disturbance of the peace by Taney's
criterion. The fact that he, a Southerner, defended the right
to free speech of a man who had preached abolitionism to four
hundred Negro slaves is evidence that he would scrupulously
respect the spirit of the constitutional guarantees of individual
rights. Of course the preacher in this instance probably

*/&, pp. 155-56. *lbuL, p. 168.

ROGER B. TAlSfEY

meant to influence the slave owners more than the slaves, but
such is the frailty of human nature that men often forget
such details when their economic interests are threatened.

Property Rights in Time of War

The other cases which we shall consider in this connection
involved individual rights endangered by the arbitrary acts of
government officials in wartime, rather than as a result of a
threat to the economic order. Two of them dealt with
property rights ignored during the war with Mexico. The
other involved the right of a citizen to a writ of habeas corpus
and to judicial trial, denied by military authorities in the
Civil War.

In 1849, i* 1 the case United States v. Guillen^ Taney
revealed his sympathy with the needs of a laboring man who
had been caught in the net of war in a foreign country. He
cut through legalism to find the spirit of the law in order to
help a man who had done no wrong and had no hostile intent.

Guillem was a French citizen who had lived in Mexico
about three years working as a cook in a hotel. He was re-
turning to France with his family when the ship on which
they were sailing was seized by the American blockading
forces. He had with him his savings of $2,860. This money,
with the other property on board, was held by the American
officers of the blockading squadron, and the passengers and
crew were turned loose. 7 The case came to the Supreme
Court on appeal.

Taney held that as soon as Guillem sailed from Vera
Cruz, he lost his hostile character as a resident of Mexico and
resumed his character as a French citizen with its rights and
privileges of a neutral. In regard to his money, the decision
called attention to the fact that it was not shipped as cargo or
for trading purposes. "It . . . was the earnings of his in-

c n Howard, 47. * Ibid., 60.

INDIVIDUAL RIGHTS I 8 1

dustry in Mexico., and was taken with him for the support of
himself and his family upon their return to France." 8 But
the appellants insisted that even though the property be-
longed to a neutral it was subject to condemnation as having
been shipped in violation of the blockade and because of the
character of the vessel. Guillem had sailed on a merchant
ship which had attempted to break the blockade. The block-
ade had been opened to allow neutrals to leave Mexico on
the warships of their respective countries, but merchant ships
had not been given permission to enter or leave.

Taney was not content to stop with the terms of the order.
He went behind it to find its purpose, and the reasons for the
distinction made between warships and merchant ships. He
pointed out that the privilege of carrying out passengers had
been confined to ships of war because it was assumed that
they would not allow it to be abused. The object of the
order was to allow neutrals to leave the enemy's country and
return to their own if they so desired. The neutral was not
required or expected to remain on the warship. The warship
was merely his means of escape from a country about to be
made the scene of fighting. Permission to escape necessarily
carried with it permission for the neutral to take with him
the means of supporting himself and his family on the voyage
and after they returned home. It was no breach of blockade
for Guillem to take his savings with him, and the fact that
he attempted to leave on a merchant ship liable to seizure did
not implicate him in the guilt of the vessel. Taney's sympa-
thetic appreciation of his position is shown by his statement
that,

Guillem must without doubt have seen citizens of neutral nations
daily leaving the city for the ships of war, and taking with them
the necessary means of support for themselves and their families.
He appears to have done nothing more than avail himself of the
id. t 60. */#&, 60, 6 1.

I 2 ROGER B. TANEY

most convenient opportunity that offered in order to accomplish
the same object. . . . And in taking his passage in The Jeune
Nelly, his Intention, as far as it can be ascertained from the testi-
mony, was merely to return to his own country, in a mode better
suited to his humble circumstances and more convenient to his
family, than by passing through the ships of war. 10

In this decision Taney gave to the rules o blockade issued
by American officials a liberal meaning in harmony with the
principles of justice. No appreciable benefit would come to
the United States from the seizure of an innocent laborer's
$2,800.

Government officials were presumed to act for the benefit
of the United States, and, unless the nation would benefit, an
individual, even though a citizen of another country, should
not summarily be deprived of his property under the guise
of the war power. Taney was too steeped in the principles
of the common law to look with favor on the destruction of
private property rights by administrative orders.

In 1851, another case involving property seized by Amer-
ican military forces during the Mexican War came before the
Court. 11 A trader named Harmony in company with other
traders had followed in the rear of the American army invad-
ing Mexico. These men were allowed to trade freely in the
areas subdued and occupied by the American forces. After
the army entered Chihuahua, Harmony desired to leave it,
but was forced by the commanding officer to accompany the
army with his property. In the course of battle and on the
march his wagons and mules were used by the army. Many
of his mules were killed. Failing in his efforts to sell what
remained of his property, he was forced to leave it behind
when he finally left Mexico. He then brought suit against
Colonel Mitchell, the officer who had executed the order
10 md., 62.

^Mitchell v. Harmony j 13 Howard, 115.

INDIVIDUAL RIGHTS 183

forcing him to accompany the army after he had expressed
his desire to leave it.

Early in the decision of the case, Taney called attention
to the fact that Harmon}' had been engaged in trade sanc-
tioned not only by the American military commander, but
also by the Executive Department of the government. While
it was true as a general rule that no citizen could lawfully
engage in trade with the enemy the rule did not apply in a
case of this kind. And he continued, "nor can an officer of
the United States seize the property of an American citizen^
for an act which the constituted authorities, acting within the
scope of their lawful powers, have authorized to be done." 12

Colonel Mitchell claimed justification mainly on the
ground that rumors had reached the commanding officer that
Harmony meant to carry on an illicit trade with the enemy
which would be harmful to the interests of the United States
when he left the American army. Taney said that the seizure
and detention of his property would have been justified if
such a design had been proved. But there was no evidence in
the record tending to show that the rumors had any founda-
tion. "And certainly mere suspicions of an illegal intention
will not authorize a military officer to seize and detain the
property of an American citizen." 13

The fact that the army was away from home and in the
enemy's country did not justify the commanding officer. Such
circumstances could not enlarge his power over the property
of a citizen. "And where the owner has done nothing to
forfeit his rights, every public officer is bound to respect them,
whether he finds the property in a foreign or hostile country,
or in his own." 14 Taney admitted that there were occasions
when private property might lawfully be taken or destroyed
to prevent its falling into the hands of the enemy. In such
cases the government was bound to make full compensation

12 Ibid., 133. *md., 133- "/*#-, *34-

184. ROGER B. TANEY

to the owner, but the officer was not liable for damages. His
standard of judgment as to when such cases arose was clean
cut and strict. He said, "But we are clearly of the opinion,
that in all of these cases the danger must be immediate and
impending j or the necessity urgent for the public service,
such as will not admit of delay, and where the action of the
civil authority would be too late in providing the means
which the occasion calls for. ... It is the emergency that
gives the right, and the emergency must be shown to exist
before the taking can be justified." 15

It is evident from these decisions that Taney would hold
administrative officers strictly within the limits of the law,
where individual property rights were concerned. We have
already noticed his tendency to follow the spirit of English
law protecting individual rights. In the case of Mitchell v.
Harmony his enunciation of the law is notably in the English
tradition. It is an established rule in England that adminis-
trative officers are personally liable for acts in excess of their
authority. 16 The law, not the officers of the law, is supreme.
Taney believed that this doctrine should apply in time of war
as well as in time of peace. Officers of the army had no more
legal power to ignore individual rights than had other officials.
The army must be subordinate to the civil authorities. The
individual was secure until judged punishable by the regular
processes of the law.

Taney recognized the existence of emergency power. It
is sometimes difficult to tell just when an emergency justifies
the taking of private property for the public good. Taney
thought that there were times when the administrative officer
would have to use his judgment and if need be submit his
case to a jury. If he had had good ground for believing that
an emergency was so pressing as to justify the taking of
md.

16 See A. V. Dicey, Law of the Constitution^ Chap. 4.

INDIVIDUAL RIGHTS 1 85

private property he might go ahead, but if his power was
questioned he would have to convince the jury that he had
acted on reasonable grounds. 17 Such a rule has a wholesome
effect on administrative officers who may sometimes become
so obsessed with their own duties and powers that they forget
the rights of the people whose servants they are. If the
liberties of the people are to be secure, emergency power
must be carefully limited. Taney did not allow even the
exigencies of war to blind him to these elemental facts.

The Case of John Merry man

The most important of the cases involving individual rights,
with which Taney was connected, was the case of Ex farte
Merryman. 13 In his opinion in that case he held that the
President had no power to suspend the privilege of the writ
of habeas corpus. His opinion was delivered at a time when
war feeling was running high, and it was in direct opposition
to a war measure of the President. Under such circumstances
it was inevitable that it should cause tremendous reverbera-
tions. The Abolitionists, who had not quite forgotten the
Dred Scott decision, were aroused again. That Taney should
have delivered such an opinion at such a time was additional
evidence that he was utterly oblivious to public opinion or his
personal fate when a principle was involved. In this case he
considered the issue one of the most vital importance. It was
a question of protecting the individual's right to live under a
rule of law.

The facts in the case were as follows: John Merryman, a
citizen of Baltimore, while peacefully sleeping in his home
was aroused at two o'clock one morning in May, 1 86 1, by an
armed force. These soldiers got him out of bed and took
him to Fort McHenry where he was imprisoned without

17 Mitchell v. Harmony, 13 Howard, 135-37-
^Campbell's Reports, 246 (1861).

1 86 ROGER B. TANEY

warrant from any lawful authority. He applied to Chief
Justice Taney for a writ of habeas corpus. Taney, sitting in
Baltimore on circuit, granted the writ. When the writ was
served on the commander of Fort McHenry he refused to
obey it. As Taney said, "... it is not alleged in the re-
turn, that any specific act, constituting any offence against the
laws of the United States, has been charged against him upon
oath, but he appears to have been arrested upon general
charges of treason and rebellion, without proof, and without
giving the names of the witnesses, or specifying the acts
which, in the judgment of the military officer constituted
these crimes." 19 The general in command at Fort McHenry
asserted that he had been authorized by the President to sus-
pend the right to the writ of habeas corpus in such cases.
Taney knew that the United States marshal acting under the
direction of the court could not summon any force strong
enough to take the prisoner away from the army. He wrote
out his opinion and ordered it filed and all the proceedings
laid before the President. 20

The Writ of Habeas Corpus Could lye Constitutionally
Suspended only by Congress

He said, as the case came before him, it seemed that the
President not only claimed the right to suspend the writ of
habeas corpus himself, but also the right to delegate the
power to a military officer and allow him to decide whether
he would or would not obey any judicial process served upon
him. This, Taney said, was a surprising doctrine, for he had
supposed it admitted by all that the writ of habeas corpus
could not be suspended except by act of Congress. 21

He then proceeded to establish the point that the privilege
to the writ could not be suspended, save by Congress. He

lt>id. t 254-S5- * Tyler, op. cit., p. 645.

21 Campbell's Reports, 255.

INDIVIDUAL RIGHTS 187

pointed out that the clause in the Constitution which author-
izes the suspension of the right to the writ was in a section
of an article devoted to the legislative department^ and with-
out the slightest reference to the executive department. 22
After enumerating the powers of Congress the authors of the
Constitution, in order to be sure that Congress should not
interfere with certain fundamental rights of individuals or
with the powers of the States, placed certain specific limita-
tions on the powers of Congress. The provision that the writ
of habeas corpus should not be suspended except when in cases
of rebellion or invasion the public safety required its suspen-
sion was among these limitations. 23

Taney also pointed out that the second article of the Con-
stitution, which provided for the organization of the executive
department and defined its powers, contained nothing which
could be construed as giving the President power to suspend
the writ of habeas corpus. The President had no power to
arrest anyone whom he might believe guilty of an offense
against the laws, nor could he authorize any officer to exercise
such a power. The fifth amendment expressly provided that
no person should be deprived of life, liberty, or property
without due process of law, which Taney said, a is, judicial
process." 24

He also asserted that in case the privilege of the writ
should be suspended by Congress and an individual was ar-
rested he could not be held in prison or tried before a military

32 Sec. 9 of Art. I. Article I begins, "All legislative Powers herein granted
shall be vested in a Congress of the United States, which shall consist of a Senate
and House of Representatives." The whole article deals with Congress, except
section 10, which contains the limitations on the powers of the States. Section 9
begins, "The Migration or Importation of such Persons as any of the States now
existing shall think proper to admit, shall not be prohibited by the Congress. ...

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless
when In Cases of Rebellion or Invasion the public Safety may require it.

"No Bill of Attainder or ex post facto law shall be passed."

28 Campbell's Reports, 256-57.

u lbid. } 258-59.

1 88 ROGER B. TANEY

tribunal. The Constitution guarantees him the right to a
speedy and public trial by an impartial jury, the right "to be
informed of the nature and cause of the accusation j to be
confronted with the witnesses against him, to have com-
pulsory process for obtaining witnesses in his favor 5 and to
have the assistance of counsel for his defence." 25

In support of his contention that only Congress might
constitutionally suspend the privilege of the writ of habeas
corpus, Taney relied not only upon reason but also cited
authorities. He traced the history of the writ of habeas
corpus in England and quoted Blackstone, showing that it was
a settled principle of English law that only Parliament could
suspend the right to the writ. 26 But he did not have to de-
pend on English law alone. He quoted from "the late Mr.
Justice Story" whom he referred to as "not only one of the
most eminent jurists of the age, but for a long time one of the
brightest ornaments of the supreme court of the United
States." Mr. Justice Story had assumed that the power of
suspending the writ of habeas corpus in America belonged to
Congress. 27 Then he quoted from the decision in Ex parte
Bollman* 8 to show that Marshall also held that the power
belonged to Congress. 29

Military Dictatorship

While it seemed to Taney that the suspension of the privilege
of the writ of habeas corpus by the military authorities was a
lawless act, he also felt that the situation was made even
more serious because other constitutional provisions had been
ignored. The military authorities had forcefully thrust aside
55 ibid., 259-60.

26 Ibid., 261-65. He quotes from Blackstone's Commentaries, I, 137 and III,
133-34-

27 Campbell's Reports, 265-66. He quotes from Story's Commentaries, vol. Ill,
sec. 1336 (Taney referred to section 1336; in the 5th ed. it is sec. 1342.)

^4 Cranch, 95, 101. * Campbell's Reports, 267.

INDIVIDUAL RIGHTS 189

the judicial authorities whose function it was to administer
the law and had substituted a military government in its
place. 30 All this was without any reasonable excuse., it seemed
to him. For ,

Up to that time, there had never been the slightest resistance or
obstruction to the process of any court or judicial authority of the
United States, in Maryland, except by the military authority.
And if a military officer, or any other person, had reason to believe
that the prisoner had committed any offence against the laws of
the United States, it was his duty to give information of the fact
and the evidence to support it, to the district attorney; . . . There
was no danger of any obstruction or resistance to the action of the
civil authorities, and therefore no reason whatever for the inter-
position of the military. 31

After reiterating that the Constitution contained guaran-
ties to the individual against deprivation of life, liberty? or
property without due process of law, against unreasonable
searches and seizures, against arrest without legal warrant,
and guaranteed him a speedy trial in a court of justice, Taney
said, "These great and fundamental laws, which congress
itself could not suspend, have been disregarded and sus-
pended, like the writ of habeas corpus, by a military order,
supported by force of arms." Under such circumstances it
seemed to him that the people were living not under a
government of law, but under a military dictatorship. 32

Believing as he did in a government of law, Taney looked
with abhorrence on anything that savoured of military rule.
Speaking of the acts which had led to the Merryman case he

30 Ibid., 267.

31 Ibid., 268. Compare with Ex parts Milligan, 4 Wallace, 123 (1866), in
which, after referring to persons in the military service, the Court says, "All other
persons, citizens of states where the courts are open, if charged with crime, are
guaranteed the inestimable privilege of trial by jury." And on p. 127, "Martial
rule can never exist where the courts are open, and in the proper and unobstructed
exercise of their jurisdiction."

32 Campbell's Reports, 268-69.

I9O ROGER B. TANEY

declared, "... I can only say that if the authority which
the constitution has confided to the judiciary department and
judicial officers, may thus, upon any pretext or under any
circumstances, be usurped by the military power, at its discre-
tion, the people of the United States are no longer living
under a government of laws, but every citizen holds life,
liberty and property at the will and pleasure of the army
officer in whose military district he may happen to be
found." 33 Shortly after delivering this opinion he wrote to
Franklin Pierce, "I hope that ... the North, as well as the
South, will see that a peaceful separation, with free institu-
tions in each section, is far better than the union of all the
present states under a military government, and a reign of
terror preceded too by a civil war with all its horrors, and
which end as it may will prove ruinous to the victors as well
as the vanquished." 34 If the Union could be saved only by
the sacrifice of constitutional liberty it was too great a price
to pay.

The Issue of Law Against the Necessity of War

The issue was one of law against supposed military necessity.
This was admitted by some of the critics of the Merryman
opinion. The New York Times said, "The majesty of the
law must, in all cases, succumb to the necessities of war." 35
At the same time The World said, "A refusal to obey the
writ of habeas corpus, when its suspension has not been au-
thorized by Congress, is of course illegal 5 the only question
is, whether the public exigency is sufficient to justify it, and
each case must depend for its justification on its own peculiar
circumstances." 36

Taney's opinion upholding the regular processes was in

., 269.

3 * Written June 12, 1861. American Historical Review, X (1904-1905), 368.
35 May 29, 1861. 86 May 29, 1861.

INDIVIDUAL RIGHTS 19 1

harmony with the established principles of English and
American law. As he pointed out, he was adhering to the
law as interpreted by Blackstone in England and Marshall
and Story in the United States. 37 One modern English
writer has aptly said that the privilege of the writ of habeas
corpus "is perhaps, the ark of the covenant in the Anglo-
American conception of freedom." 38 Any attempt to justify
executive suspension of the writ from the standpoint of con-
stitutional law is like trying the magician 5 s trick of pulling
rabbits out of a hat. 39 W. W. Willoughby says, "That
Taney's reasoning is correct there would now seem to be little
question." 40 The supporting evidence for Taney's position
was perhaps marshalled most thoroughly by David Dudley
Field, counsel for Milligan, in the case of Ex farte Milligan 4 ' 1
in 1866.

In the decision of the Milligan case the Supreme Court
said:

The proposition is this: that in a time of war the commander of an
armed force . . . has the power, within the lines of his military
district, to suspend all civil rights and their remedies . . . and in
the exercise of his lawful authority cannot be restrained, except by
his superior officer or the President of the United States. . . . The

37 It seems to have been generally accepted among the early legal authorities
that only Congress could suspend the writ of habeas corpus In the United States.
St. George Tucker is an early authority who might have been cited along with
Marshall and Story. He said in his Blackstone's Commentaries, u ln England the
benefit of this important writ can only be suspended by authority of parliament.
... In the United States, it can be suspended, only by the authority of congress?
but not whenever congress may think proper; for it cannot be suspended, unless in
cases of actual rebellion, or invasion." Vol. i, Appendix, note D, p. 292.

88 H. J. Laski, Liberty in the Modern State, pp. 51-52.

39 For such an attempt see Joel Parker, Habeas Corpus and Martial Law
(1862).

40 The Constitutional Law of the United S fates, III, 1615. J. R. Tucker in The
Constitution of the United, States t II, 643, says, "What Federal authority can sus-
pend this privilege? The answer is distinct: No power but Congress can suspend
itj the President cannot."

41 4 Wallace, 2.

192 ROGER B. TANEY

statement of this proposition shows its importance; for, if true,
republican government is a failure, and there is an end of liberty
regulated by law. . . . Civil liberty and this kind of martial law
cannot endure together; the antagonism is irreconcilable; and, in
the conflict, one or the other must perish. ... If this were true,
it could be well said that a country, preserved at the sacrifice of
all the cardinal principles of liberty, is not worth the cost of
preservation. Happily, it is not so. 42

Five years after Ex parte Merryman the Supreme Court
was voicing Taney's doctrine in language even more compel-
ling, if possible, than he had used. As the historian of the
Court has said, "Never did a fearless Judge receive a more
swift or complete vindication." 43

The whole question of how far a government may go in
ignoring individual rights in wartime is intimately connected
with the theory of the location of sovereignty and the man-
ner of its expression which is accepted. As we have already
noticed. Chief Justice Taney believed that sovereignty rested
in the people of the United States, 44 that they had spoken
authoritatively in the Constitution, and that the provisions of
the Constitution must be supreme until changed by the reg-
ular prescribed method. 45 The government was not sov-
ereign. It could not change the Constitution or ignore its
provisions in any particular. Such a theory, if accepted,
might set up irritating restraints on governmental action in
time of war, because in war quick and drastic action is some-
times necessary. At times the Constitution seems to stand in
the way of an apparently desirable war policy. The Consti-
tution contains definite restraints on governmental action, and
the Constitution is rather difficult of amendment; at any rate
the process prescribed is not a rapid one. If the sovereign can

42 Ibid.) pp. 124-26.

43 Charles Warren, The Supreme Court, in United, States History, II, 374.

44 Dred Scott <u. Sandjord, 1 9 Howard, 404.

45 Ableman v. Booth, 21 Howard, 525.

INDIVIDUAL RIGHTS 193

make its will known in no other way the government may be
embarrassed in time of crises, unless it chooses to ignore the
Constitution.

While Taney's theory, a heritage from established Anglo-
American law, has been generally accepted by American
jurists, it is possible that it is too idealistic to meet with gen-
eral acceptance in times of crisis. The German philosopher
Hegel believed that sovereignty, although possibly the at-
tribute of the state in theory, was in reality voiced in the final
decisive expression of an individual will. 46 More recent
writers have contended for the kindred doctrine that, for
practical purposes, the government is the sovereign. 47 In
time of w r ar this conception seems to guide American practice.
The government, by tacit consent, rules with scant regard
for the constitutional limitations which purport to protect the
individual. Perhaps the sovereign people may speak in other
ways than by amending the Constitution.

There are those w r ho believe that war justifies the suspen-
sion of law, if such suspension will apparently further the
ends of war. Treitschke was representative of a large group
of German thinkers in holding that political rights existed
not for the sake of the individual, but for the sake of the
state, 48 and when its very existence was at stake the state
might suspend the rights of its citizens. 49 Treitschke was
thinking of the government as acting for the state In such an
emergency. Such theories are not at all peculiar to German
thinkers. We have already called attention to the fact that
the New York Times and The World unhesitatingly ad-
mitted that Lincoln's suspension of the writ of habeas corpus

48 HegePs Philosophy of Right, translated by S. W. Dyde, Sec. 279, pp. 286-91.

47 H. J. Laski, A Grammar of Politics, p. 1455 Z. Chaffee, Freedom of Speech,

PP- 375-76.

48 H. W. C. Davis, The Political Thought of Heinrlch von Treitschke, p. 49.
48 Heinrich von Treitschke, Politics, translated by B. Dugdale and T. DeBille,

I, I56-57'

194 ROGER B. TANEY

was illegal but they justified it on the ground of military
necessity. The World War led to the expression of similar
ideas. One writer in 1918 asserted that there were practically
no limitations on the war power of the American govern-
ment. 50 He said that the war leaders would use every means
they thought necessary for winning the war whether they
were constitutional or not, and that it would be wise to accept
an interpretation of the Constitution which would make it
elastic enough to allow everything. The theory has also been
advanced that individual rights are relative, not absolute
goods, and if they are less useful to society in war than in
peace they will receive less protection. 51

Such views are in direct contradiction to those held by
Taney. To him the Constitution was the supreme law in
war as well as in peace. In a paragraph that reveals some of
the most important principles in his political theory he said:

Nor can any argument be drawn from the nature of sovereignty,
or the necessity of government, for self-defence in times of tumult
and danger. The government of the United States is one of
delegated and limited powers ; it derives its existence and authority
altogether from the constitution, and neither of its branches,
executive, legislative or judicial, can exercise any of the powers of
government beyond those specified and granted; for the tenth
article of the amendment to the constitution, in express terms, pro-
vides that "the powers not delegated to the United States by the
constitution, nor prohibited by it to the states, are reserved to the
states, respectively, or to the people." 52

As Taney saw it, the sovereign had spoken, its will was
written into the Constitution, and its will was law.

That Taney's theory was representative of the sound judi-

60 H. J. Fletcher, "The Civilian and the War Power," Minnesota Law Review,
II (1918), 110-31.

1 J. P. Hall, "Free Speech in War Time," Columbia Law Review, XXI
1), 537-
52 Campbell's Reports, 26061.

INDIVIDUAL RIGHTS 195

clal thought of his time would seem indicated by the decision
of the Supreme Court in Ex parte Milligan already alluded

to. In that decision, when the Civil War was hardly more
than ended, the Court, by then composed largely of Repub-
licans, asserted that "The Constitution of the United States
is a law for rulers and people, equally in war and in peace,
and covers with the shield of its protection ail classes of men,
at all times, and under all circumstances." 53 The Supreme
Court of Illinois reiterated the doctrine in 1867, saying, "The
doctrine that a state of w r ar of itself suspends, at once and
everywhere, the constitutional guaranties for liberty and prop-
erty, finds no support in the Constitution, and is inconsistent
with every principle of civil liberty and free government. 5 ' 54

The Background of Taney's Theory

Taney's fervent belief in the supremacy of the law was prob-
ably an inheritance from English thought. Englishmen have
long regarded the reign of law with the same fervor Taney
did. Their feeling is largely a result of the traditions of
British freedom. It is probably strengthened when as young
men at Oxford they read Aristotle and find him saying, "To
invest the law then with authority, is, it seems, to invest God
and intelligence only . . - even the best of men in authority
are liable to be corrupted by anger. We may conclude then
that the law is intelligence without passion and is therefore
preferable to any individual." 55 Edmund Burke, bitter op-
ponent of the radical natural rights philosophy of revolu-
tionary France, thought that the right to live by a rule of law
was a natural right of men. 50 Englishmen have not yet for-
gotten the doctrine. In the midst of the World War Earl

53 4 Wallace, 120, 121 (1866).

54 Johnson v. Jones ef aL, 44 Illinois, 155.

^The Politics, translated by J. E. C. Welldon, Book 3, Cbap. 16, p. 154.
58 "Reflections on the Revolution in France," Selected Works, edited by E. J.
Payne, II, 69.

196 ROGER B. TANEY

Curzon declared that a country was on the road to disaster
whenever it allowed a military administration to get the
upper hand. 57

William Pitt made one o the greatest speeches of his
career in defense of the cause of John Wilkes, an English
scoundrel, because through this case he was contending for
the security of all Englishmen. 58 His ideas presented on
that occasion accurately express the theory held by Taney.
He asserted that every exertion of power beyond the bounds
prescribed by the constitution, even though the House of
Commons be the perpetrator, was arbitrary, illegal, and
threatened destruction to the nation. To him the first prin-
ciple of the constitution was that the subject should not be
governed by the arbitrary will of any one man or body of
men, but by laws. An English subject was possessed of cer-
tain rights which the laws had given him, and which the laws
alone could take from him.

Taney's high regard for individual liberty as established
by law may have been influenced by the developments of the
period in which he lived. Early in his political career he
aligned himself with Jacksonian democracy, and in the strug-
gle over the Bank charter he gave evidence of his sympathy
for the rights of common men and his belief that their liberty
should be preserved. The years that followed the triumph
of Jacksonian democracy were years of vast importance for
the common people. One of the outstanding characteristics
of the period between 1830 and 1860 was the increasing
recognition and protection of individual rights by law. Mar-
ried women, infants, debtors, bankrupts, and criminals had
previously had few rights guaranteed by law. In this period
more humane and reasonable legislation vastly improved

57 The New York Times, May n, 1918.

58 Speech on the case of John Wilkes, January 9, 1770, in C. A. Goodrich,
Select British Eloquence, pp. 110-13.

INDIVIDUAL RIGHTS 197

their status. Laborers were allowed to organize in unions. 59
It was a period when people were thinking in terms of human
rights, not in the theoretical fashion of the natural rights
school of the previous century, but in practical and critical
comparison of the legal status of human beings as it was and
as justice demanded that it should be. Taney's thought was
very much in harmony with the democratic and humane
tendencies of this age.

Undoubtedly the nature of Taney's education and his
legal experience were also partly responsible for his reverence
for the law. In college he had felt the influence of Dr. Nis-
bet who, while he had little faith in American democracy,
was a Scotch Whig with an inherent respect for the great
British institutions. Dr. Nisbet's influence was probably
something like Burke's would have been. After getting a
good college education and reading widely Taney prepared
himself for the practice of law, not as John Marshall had
done, by attending lectures for six -weeks, 60 but by three years
of hard study. Following his admission to the bar he de-
veloped a large and important law practice, and came to be
regarded as a thorough student of the law. With such a
background it was natural that he should develop a respect
for the principles of the law and a high regard for its place
in human affairs. It was not strange either that his viewpoint
was largely English.

Taney's Decision was Ignored by the Executive

Taney's defense of the right of the citizen to a rule of law
in the case of John Merryman was like the voice of one cry-
ing in the wilderness. It had no immediate effect on the
methods employed by the President and the army. President
Lincoln, without congressional authorization, continued to

59 Charles Warren, A History of the American Bar, p. 446.

60 A. J. Beveridge, The Life of Jo An Marshall, I, 154.

198 ROGER B. TANEY

suspend the right to the writ of habeas corpus in particular
instances and in particular localities, leaving a wide amount
of discretion to the army officials. 61 Finally in September,
1862, he issued a proclamation that all persons discouraging
enlistments or guilty of other disloyal practices should be
subject to martial law and to trial and punishment by courts-
martial or military commission. The privilege of the writ of
habeas corpus was suspended in the case of all persons ar-
rested during the war and imprisoned by military authori-
ties. 62 Without the sanction of law the federal government
arrested men by the thousands and confined them in military
prisons. The number of such executive arrests was certainly
over 13,000, and it has been estimated to have been as high
as 38 ? 000. 63 This policy was bitterly criticized in some quar-
ters, but it is generally assumed that the people as a whole
supported it. 64

President Lincoln, during the Civil War accepted the
Machiavellian doctrine that the end justifies the means. The
end was national unity and it was to be obtained by force.
During the same period national unification was achieved in
Italy and Germany by similarly aggressive methods. Pro-

61 Richardson, of. cit n vol. VI; June 20, 1861, authorizing the suspension of
the writ in the case of a particular man suspected of "treasonable practices," p. 19.
July 2, 1861, authorizing the suspension of the writ between New York and Wash-
ington, p. 19. October 14, 1861, authorizing further suspension of the writ, p. 39.
December 2, 1861, authorizing Major General Halleck to suspend the writ in
Missouri, p. 99. See also orders signed by the Secretary of War; February 14,
1862, pp. 102-4; February 25, 1862, pp. 108-9; February 27, 1862, p. 109; April
5, 1862, p. 112. The order of February 25, 1862 dealt with censorship of the
press.

** Ibid., pp. 98-99 (September 24, 1862). Charles Warren has called attention
to the fact that this proclamation was issued just two days after Lincoln had issued
his Emancipation proclamation, "Lincoln's Despotism," The New York Times,
May 12, 1918. Finally on March 3, 1863 Congress passed an act authorizing the
suspension of the privilege of the writ of habeas corpus.

63 J. P. Hall, "Free Speech in War Time," Columbia Law Review > XXI (1921),
527-28.

64 Charles Warren, "Lincoln's Despotism," The New York Times, May 12,
1918.

INDIVIDUAL RIGHTS 199

fessor Dunning has said, "Louis Napoleon, Otto Von Bis-
marck, Camilio di Cavour and Abraham Lincoln were hard-
headed politicians, whose methods subordinated the ideal and
sentimental to the practical." 65 4 In America, for the time
being at least, Taney was in the minority. He was standing
in the face of a nationalism bent on American unification re-
gardless of the will of a fraction of the people, and it was to
be achieved regardless of the Constitution.

Theoretical justification for the policy pursued by Lin-
coln may perhaps be found in the doctrine that anything is
justifiable when the existence of the nation is at stake. But,
Taney would have contended, the President is not the nation.
He is only an elected officer with certain delegated and
limited powers. The sovereign has spoken and its will is
written into the Constitution. Whatever may be sound the-
ory, Americans in time of peace have been devoted to the
forms of constitutional liberty. But in time of war many of
them have accepted the doctrine that the sovereign is not
bound by the law, and that somehow or other the officers of
the government exercise the sovereignty.

Public Opinion on the Decision

Taney delivered his opinion in the Merryman case at a time
when the streets of Baltimore were full of armed soldiers and
the cannons of Fort McHenry were pointed upon the city.
As he left the house of his son-in-law on his way to court he
remarked that it was likely that he would be imprisoned in
the fort before night, but he was going to do his duty. 66 It
was a dramatic occasion when the eighty-four year old Chief
Justice in a calm low voice read to an audience tense with
suppressed emotion his defense of individual rights as guaran-

*W. A. Dunning, A History of Political Theories from- Rousseau to Spencer,
p. 298. By permission of The Macmlllan Company, publishers.
66 Tyler, op. cit.> p. 427.

2OO ROGER B. TANEY

teed by law. For his opinion he faced the condemnation of
a people gripped by the patriotic intolerance of war and, it
seemed at the time, military arrest. A few weeks later in the
United States Senate, Senator Polk of Missouri referring to
Taney's action said:

I honor him for the brave and courageous discharge of his duty
under the circumstances in which he was placed. He was in the
midst of civil tumult; he was surrounded by soldiers, and by arms.
While I honor him for his profound learning, and his great knowl-
edge; while I honor him for his sage wisdom and his long expe-
rience; I honor him also, and above all, for the simple and sublime
courage that he manifested in applying the plain principles of the
Constitution, under the circumstances in which he was placed.
He is a worthy head of the conservative branch of the Govern-
ment. 67

The Daily Exchange of Baltimore, speaking editorially
said of Taney's opinion, "Whatever be the result of the con-
flict which produced it, the incident itself will be recorded
forever, as one of those glorious protests of the right against
the wrong, which dignifiy the disasters of a people and sow
the ineradicable seeds of their ultimate redemption." 68

Public opinion in the North was, in general, bitterly
hostile toward Taney for his action. The New York Times
while admitting that executive suspension of the writ of
habeas corpus was illegal, said that respect for the courts was
weakened by a fruitless conflict with the military forces when
they were in control. The editorial went on to accuse Taney
of being anxious to free a traitor. 69 He was himself "steeped
to the crown in treason." "Too feeble to wield the sword
against the Constitution, too old and palsied and weak to

67 The Congressional Globe, 37th Cong., ist sess., July 10, 1861, p. 48.

68 May 28, 1 86 1. Two of the editors of the Daily Exchange were arrested in
September, and the paper was suppressed, J. T. Scharf, The Chronicles of Balti-
more, pp. 616-17.

130 May 29, 1861.

INDIVIDUAL RIGHTS 2OI

march in the ranks of rebellion and fight against the Union,
he used the power of his office to serve the cause of the trai-
tors. . . ." 70 The World was milder in its condemnation,
but its editors said that the tone which Taney assumed toward
the President was "at least uncalled for and in bad taste." 71
Even though Taney had been able to foresee that his de-
cision would be ignored by the President and condemned by
prevailing public sentiment there can be little doubt that his
decision would have been the same. He was writing into the
record his interpretation of principles vital to the liberties of
the citizen. As a member of the Supreme Court provided
for by the Constitution he had sworn to uphold the Constitu-
tion. He had a duty to perform and nothing could swerve
him from its performance.

uswn

Concl,

In 1819 before a slave-owning jury Taney defended a Meth-
odist Abolitionist's right to free speech. Forty-two years
later, in the shadow of Fort McHenry's guns, he defended
John Merryman's right to be tried according to the methods
prescribed by law. He had travelled a long road in the
meantime, but neither his principles nor his alacrity in their
defense, had suffered any change. At the close of a long
career he could voice in fearless and fervent language his be-
lief in the right of the individual to live by a rule of law. It
had been one of the fundamental principles of his political
faith from the beginning to the end.

70 May 30, 1861. n May 29, 1861.

XI

THE RECONCILIATION OF LIBERTY WITH THE
SOVEREIGNTY OF THE STATE

The Supremacy of the State

The state which Taney envisages is a powerful state. In it
there is no question about "the superiority of public force to
private forces." 1 As he sees it, the private forces which
threaten most the superiority of the public force in the mod-
ern state are those which represent the attempts of economic
groups to infringe upon the welfare of the whole people.
His convictions in this regard, most forcefully expressed in
the Bank struggle, were consistently applied in his judicial
decisions, especially in those affecting corporations. In such
cases he was constantly on the alert to maintain the supremacy
of the state.

Taney's decisions show a marked tendency to place the
public welfare ahead of private interests. As we noticed in
the discussion of the police power he allows the state almost
unlimited power to legislate for the general welfare.
Whether the matter in question be liquor laws passed with a
view to the regulation or prohibition of a business believed
injurious to health or morals, or a law designed to prevent
the increase of poverty and pauperism Taney sustains the
legislature when there is not a clear constitutional prohibition
against such legislation. His realistic conception of the prob-
lems that faced the legislative officers of the state is illustrated
in his dissenting opinion in the Passenger Cases where, speak-
ing of immigrants, he said:

1 "Tlie superiority of public force to private forces is the germ of the principal
attribute of the State the attribute of sovereignty. . . ." The Collected Papers
of Paul Vinogradoff, edited by H. A. L. Fisher, II, 351.

r 2021

LIBERTY AND STATE SOVEREIGNTY 203

Now in the great commercial emporium of New York, hun-
dreds are almost daily arriving from different parts of the world,
and that multitude of strangers, among whom are always many
of the indigent and infirm, inevitably produces a mass of pauper-
ism, which if not otherwise provided for, must press heavily on
the industry of its citizens; and which, moreover, constantly sub-
jects them to the danger of infectious diseases. It is to guard
against these dangers that the law in question was passed. 2

Taney's high view of the power of the state led him to
assume that the representatives of the sovereign could be
given power to attack such evils along whatever lines might
seem best to them. As a member of the Supreme Court of
the United States he assumed that the State legislatures had
such power except where specifically limited by the Constitu-
tion.

In his conception of the nature of the state and the location
of sovereignty, and in his view of the predominance of the
social welfare over private interests, Taney shows a striking
similarity to Rousseau. In the thought of Rousseau the state
is a corporate body formed by the mutual agreement of the
members. Each member has a two-fold capacity he is both
sovereign and subject. 3 The state has "absolute power over
all its members." 4 Thus far Rousseau's conception of the
state is essentially the one which Taney accepted.

The Legal Nature of the State

Taney, however, differs from Rousseau at an important point
in his theory. He speaks as a jurist and emphasizes the judi-
cial nature of the political association more than Rousseau
did. While Taney was a liberal judge and not as tightly
bound by ancient rules of law as are more conservative
judges, his profound respect for the law and for legal

2 7 Howard, 485 (1848). 8 The Social Contract^ Book I, Chap. 7.

4 Ibid., Book 2, Chap. 4, p. 27.

2O4 ROGER B. TANEY

methods influenced most of his expressions of theory. He
seemed to have had something of Aristotle's feeling that
"law is intelligence without passion" and much to be pre-
ferred to the rule of men. 5

To Rousseau the sovereign is beyond law. "The Sov-
ereign, merely by virtue of what it is, is always what it should
be." 6 It cannot be bound constitutionally or in any other
way. It is against the nature of the body politic "for the
Sovereign to impose on itself a law which it cannot infringe." 7
That he meant for this to include constitutions as well as
other expressions of state policy is evidenced by the further
statement that "there neither is nor can be any kind of funda-
mental law binding on the body of the people not even the
social contract itself." 8

Taney's state is a legal state. It is formed by a compact
which is the supreme law of the land. It is a subject of
duties as well as rights. These are not duties imposed on it
in the same sense in which legal duties are imposed on indi-
viduals. 9 They are of two sorts, constitutional and moral.
The constitutional limitations are self-imposed, but they chart
a course which is the only one that the state can be assumed
to follow. Taney recognizes no expression of the public,
save that of a constitutional nature, as an expression of the
sovereign will. 10 Besides the constitutional limitations there
are moral obligations which apply to the state as well as to
individuals. 11 However, if the state ignores moral obliga-

5 The Politics of Aristotle, Book 3, Chap. 16, p. 154.
The Social Contract) Book I, Chap. 7, p. 17.

7 Ibid. 8 Ibid.

6 "If such be the construction of this law ... it is the first instance in the
history of nations in which a sovereignty has imposed a penalty upon itself, in
order to compel it to be honest in its dealing's with individuals. A sovereignty is
always presumed to act upon principles of justice, and if, from mistake or over-
sight, it does injury to a nation or an individual, it is always supposed to be ready
and willing to repair it." Bank of the United, States v. The United States, z
Howard, 759-60 (1844).

10 Perhaps best illustrated in Ex -parte Merryman, Campbell's Reports, 254
(1861), and Ableman v. Booth, 21 Howard, 520 (1858).

LIBERTY AND STATE SOVEREIGNTY 2O5

tlons and acts unjustly there is no authority,, other than the
sovereign itself, which can force a change of policy. The sov-
ereign is a free moral agent. It may choose between good
and evil, but if it chooses the evil it will suffer. 12

Although Taney held this view of the power of the sov-
ereign he was quick to condemn the acts of governmental
agents when they ignored the moral obligations of the sov-
ereign and its agents, unless they were constitutionally au-
thorized. This was illustrated by a Civil War decision which
he handed down in a case involving the tactics of a govern-
ment detective who had taken steps which practically
amounted to the instigation of a crime for which he arrested
the offender. Summarizing Taney's opinion in the case the
reporter said:

The parties he considered as having been seduced and betrayed
into the purchase of the goods by the Provost-Marshal's officers,
and could see no possible benefit to accrue to the Government
from such a seizure that would in any way compare with the great
evil that would arise from a court of justice countenancing such
conduct by a condemnation of the goods. It would encourage
officers to betray the weak and imprudent into all sorts of violation
of law and would be demoralizing in the extreme to the officers
themselves; and he was at a loss to see how any court of justice
could condemn property under the circumstances of this seizure,
unless the means employed be also countenanced. 13

11 In 1832 when he was Attorney General Taney, at the request of the Presi-
dent, rendered an opinion in regard to the compensation to be allowed to the
widow of a consul who had died in the service. In the course of the opinion he
said, "This, I think, is not only an equitable construction of the law, but one
which ... is called for by the principles of justice j and it would be a severe and
harsh construction of it to deny ... to his widow and family, those means of
coming again to their home which would have been offered to them by the public
if he had lived." Official Opinions of the Attorneys General , II (1825-1835), 522.
See also Ohio Life Insurance and Trust Co. v. Debolt, 16 Howard, 428-29 (1853).

^Ohio Lije Insurance and Trust Co. v. Debolt, 16 Howard, 428-29 (1853).
Quoted in chap. 3, p. 205.

13 Tyler, op. cit., p. 441. This case is not reported m Campbell's Reports, since
these Reports include only his decisions to 1861. Apparently it is not to be found
in the Federal Cases either.

2O6 ROGER B. TANEY

In a similar case in 1928 Mr. Justice Brandeis said in a
dissenting opinion, "This prosecution should be stopped, not
because some right of Casey's has been denied, but in order
to protect the Government. To protect it from illegal con-
duct of its officers. To preserve the purity of its courts. 5 ' 14
Mr. Justice Brandeis and Chief Justice Taney were thinking,
in these opinions, of the social consequences of such conduct
by government officers. There was something about it that
was morally reprehensible. It was incompatible with the
dignity of government in a democracy and incompatible with
government by law.

The Supreme Law

Taney's belief in the inviolability of the Constitution and the
supremacy of constitutional laws has been treated in some
detail in the course of this discussion of his theory. Because
of his tendency to place social welfare above individual in-
terests he upheld the legislatures in most of their measures
dealing with the general welfare. However when he thought
Congress had interfered with a Constitution-guaranteed right
of individuals by depriving them of property without due
process of law, he wrote his powerful Dred Scott opinion up-
holding the Constitution at the expense of the statute. 15 His
belief in the supremacy of the Constitution and its "great
and fundamental laws, which congress itself could not sus-
pend" 16 led him in the Merryman case to write a ringing
condemnation of the tactics of military officers acting under
the President's orders. There was no risk which he would
not take personally in order to maintain the supremacy of
the Constitution and the reign of law. It was his conviction
that free government could not exist without "a ready

14 Casey v. United States, 276 U. S. 4.25.

15 19 Howard, 393 (1856).

18 Ex $arte Merryman, Campbell's Reports, 269 (1861),

LIBERTY AND STATE SOVEREIGNTY

obedience to the laws as administered by the constituted
authorities." 17

Taney's view is essentially like that of one of his con-
temporaries who said, "The sovereignty of the law ... is
the foundation stone of all society. . . . He who disobeys it
is an enemy to his race and a traitor to himself; he who defies
it, is a rebel against the power, which he himself has con-
tributed to call into existence and to make supreme. 5718

The Importance of the Court

Because of his acceptance of the Constitution as the ultimate
expression of the sovereign will and his belief in the su-
premacy of the law, Taney exalted the position of the
Supreme Court as the final interpreter of the law. Martin
Van Buren, critical of Taney's conception of the position of
the Court, thought he saw in it the shadow of John Marshall.
Explaining the background of Taney's views he said:

He had occupied a distinguished place in the Federal ranks to an
advanced period in his professional life; he had acquired an en-
viable fame at the Bar, and had left it ... with feelings of ad-
miration and respect not only for his professional brethren but for
the Bench, ... It was hardly to be expected that he should, on
taking his seat, have proved insensible to the esprit du corps which
had long prevailed in and around that high tribunal, and which,
directed by the plastic hand of John Marshall, had charmed minds
as strong as his own, even although professing opposite political
principles. . . . Although the master-mind which gave it life and
by which it was installed has departed, the proceedings now the
subject of our review give us abundant reason to apprehend that
the spirit has retained its place and power. 19

17 Ableman v. Booth, 21 Howard, 525 (1858). See also Kennett et al v.
Chambers, 14 Howard, 50 (1852).

18 Henry St. George Tucker, Lectures on Government, p. 14.

19 Van Buren, op, cit., p. 363. "The subject of our review" was the Dred Scott

decision.

208 ROGER B. TANEY

This was the verdict of a friendly critic who had been
associated with Taney in political leadership under Andrew
Jackson. He never forgot Taney's Federalist background.
And because of it he was just a little doubtful about the
orthodoxy of his democracy. 20 When he found Taney as-
suming that the Supreme Court should be the final authority
in interpreting the law, Van Buren jumped to the conclusion
that it must be the Federalist taint, and the lingering influ-
ence of the tough old Federalist who had preceded Taney on
the Bench. It is true that most of Taney's ideas on the posi-
tion of the Court would have met with Marshall's approval.
But there was nothing in them incompatible with the dem-
ocratic faith. In Taney's theory they were part of the same
pattern. The Court was the great defender of the settled
will of the sovereign people as constitutionally expressed.

As he saw it the Court was the chief agency for the main-
tenance of the political system established by the Constitution.
In connection with a discussion of the power conferred upon
the Supreme Court he said:

This judicial power was justly regarded as indispensable, not
merely to maintain the supremacy of the laws of the United States,
but also to guard the States from any encroachment upon their
reserved rights by the general government. And as the constitu-
tion is the fundamental and supreme law, if it appears that an act
of congress is not pursuant to and within the limits of the power
assigned to the federal government, it is the duty of the courts of
the United States to declare it unconstitutional and void. 21

He regarded the Supreme Court as peculiarly fitted for
such a high duty because he thought of it, not as the creature
of the government, but as the instrument of the sovereign
people. Of it he said, "This tribunal, therefore, was erected,
and the powers of which we have spoken conferred upon it,
not by the federal government, but by the people of the

**Ibid. 9 p. 365. ffl Ableman v. Booth, 21 Howard, 520 (1858).

LIBERTY AND STATE SOVEREIGNTY 209

States, who formed and adopted that go\ r ernment, and con-
ferred upon it all the powers, legislative, executive, and
judicial which it now possesses." 22

In its exercise of judicial power Taney expected the Court
to be supreme, and he thought it entitled to the support of
the executive. In the Merryman case he said:

And the only power, therefore which the president possesses,
where the "life, liberty, or property" of a private citizen are con-
cerned, is the power and duty prescribed in the third section of
the second article, which requires "that he shall take care that the
laws shall be faithfully executed." He is not authorized to execute
them himself, or through agents . . . but he is to take care that
they be faithfully carried into execution, as they are expounded or
adjudged by the co-ordinate branch of the government to which
that duty is assigned by the constitution. It is thus made his duty
to come in aid of the judicial authority, if it shall be resisted by a
force too strong to be overcome without the assistance of the
executive arm. But in exercising this power he acts in subordina-
tion to judicial authority, assisting it to execute its process and
enforce its judgments. 23

Taney again had occasion to express his views of the inde-
pendent position which the Court should occupy when, dur-
ing the Civil War, Congress provided for a tax on incomes,
including the salary of federal judges. In a letter of protest
to the Secretary of the Treasury, after calling attention to
the constitutional provision that salaries of federal judges
shall not be reduced during their continuance in office, he said,
"The Act in question, as you interpret it, diminishes the com-
pensation of every Judge three per cent.; and if it can be
diminished to that extent by the name of a tax, it may, in the
same way, be reduced from time to time at the pleasure of
the Legislature." 24

** Ibid., 21. a Ex 'parts Merryman } CampbelPs Reports, 260.

24 Tyler, op. cfa, p. 432.

2IO ROGER B. TANEY

Then he pointed out the reasons why the maintenance of
judicial independence was of vital importance, saying:

The Judiciary is one of the three great departments of the
Government created and established by the Constitution. Its
duties and powers are specifically set forth, and are of a character
that requires it to be perfectly independent of the other depart-
ments. And in order to place it beyond the reach, and above even
the suspicion, of any such influence, the power to reduce their
compensation is expressly withheld from Congress and excepted
from their powers of legislation. . . . For the articles which limit
the powers of the Legislative and Executive branches of the Gov-
ernment, and those which provide safeguards for the protection of
the citizen in his person and property, would be of little value with-
out a Judiciary to uphold and maintain them which was free from
every influence, direct or indirect, that might by possibility, in
times of political excitement, warp their judgments. 25

This argument for the independence of the judiciary is
an excellent statement of Taney's conception of the position
which the courts should occupy. Agents of the sovereign
people, they should be beyond political influence or popular
excitement as they apply the sovereign will to controversies
that come before them, whether in relation to powers of gov-
ernment or individual rights. This feeling was part of his
deeply rooted belief in the supremacy of the law.

Democracy

That Taney was a firm believer in individual rights is evi-
denced by the Dred Scott opinion and by his wartime decisions
involving individual liberty. 26 And yet, apparently there
were no individual rights which he considered beyond the
reach of the sovereign power constitutionally expressed. His
25 ibid., pp. 432-33-

38 Ex parte Merry man, Campbell's Reports, 524 (1861); United States v. Guil-
lem } ii Howard, 47 (1850)5 Mitchell v. Harmony y 13 Howard, 115 (1851).

LIBERTY AND STATE SOVEREIGNTY 211

defense of individual liberty was always of liberty established
by law. He never based his defense on natural rights.

How could a lover of liberty entrust such transcendent
power to the state? The answer, in Taney's case, lies in the
deep rooted democracy of his political faith. He had a firm
belief in the ultimate wisdom of the people. He was willing
to trust the state with power because it was his conviction that
the will of the people as constitutionally expressed would
not endanger the individual's welfare, but rather conserve it.
In 1833, in connection with the Bank struggle, he wrote to
Jackson urging a course of action that would put the issue
squarely before the people, saying, "I rely at all times with
confidence on the intelligence and virtue of the people of the
United States, and believing it to be right to remove the
Deposites, I think they will sustain the decision." 27 In 1836,
several months after he had become Chief Justice he wrote
to Jackson saying that he thought the great majority of the
people of the United States "will never barter their liberties
for money nor shrink before the frowns of the moneyed
aristocracy." 28

Even after his experience in the Merryman case when the
Constitution had been ignored by the military forces of the
government, apparently with the tacit approval of public
opinion, Taney regarded the aberration as only temporary.
In 1863 he wrote to a friend, "At my advanced age, I can
hardly hope to see the end of the evil times on which we
have fallen. But I trust you will live to see the civil power
restored in Maryland to its supremacy over the military, and
the homes and firesides of its citizens once more safe under
the protection and guardianship of law." 29

It was only after constitutional government had been sus-
pended by military force that Taney's political expressions

27 Correspondence of Andrew Jackson, V, 148.

p. 431* ^ Tyler, op. cit., p. 458.

212 ROGER B. TANEY

were pessimistic, but even then he looked forward to the time
when the supremacy of the law would again be established.
When one has an abiding faith in democracy and the wisdom
of the people, he is willing to trust the state with power. It
is only illegal power that seems dangerous to the believer in
democracy.

Conclusion

In our time perhaps more than at any other period since he
lived, Taney's thought has a particular interest in connection
with everyday affairs. Democracy, the powerful state, human
liberty these were the high points in his political philosophy.
Are they irreconcilable? In a world that is full of dictator-
ships it is easy to answer in the negative. Taney's own ex-
perience in the Merryman case may seem at first glance to
demonstrate the fallacy of his faith in the concomitant nature
of liberty and authority in a democracy under a reign of law.
In a crisis the Constitution and the law were easily brushed
aside at the order of the chief executive elected by the people.
Taney's answer to this indictment of his faith must have been
that the lawless encroachment on individual rights was not
the sovereign expressing itself, but government officials
usurping power. And he might have said, as Thomas Jeffer-
son did under similar circumstances, "A little patience and
we shall see the reign of witches pass over . . . and the
people recovering their true sight, restoring their government
to its true principles." 30

In time of peace the encroachment of government on the
affairs of individuals is less spectacular. We have gone a
long way from the laissez faire ideas which prevailed in the
early days of the, industrial revolution. The trend toward
social thinking was beginning to be noticeable in Taney's time.

30 Jefferson to John Taylor, June i, 1798, The Writings of Thomas Jefferson y
VII, 265.

LIBERTY AND STATE SOVEREIGNTY 213

Already the legislatures were setting about the alleviation of
some of the inhuman practices of the machine age, and the
courts were allowing them increasing leeway. Chief Justice
Taney was one of the pioneers in judicial liberalism toward
legislation for the social welfare. Since his time there has
been a powerful trend toward more state control in every
phase of life. Sociologists, economists, and statesmen are
emphasizing social rights and obligations. Socialism has
made rapid headway in recent years, so that the socialized
state, already in existence in a number of countries in the
world, seems not such a remote possibility in the United
States. Everywhere governments are assuming more re-
sponsibility for the character of their peoples, and more
power over their lives.

A modern school of political scientists, in reaction against
the tendency to make the state omnipotent, have attacked the
theory of state sovereignty, a theory once as unquestioned in
political science as Newtonian principles in physics or the Ten
Commandments in the Christian faith. Professor Laski
argues that "it would be of lasting benefit to political science
if the whole concept of sovereignty were surrendered." 31 If
there is something dangerous to human personality in the
powerful state there can be little doubt as to the correctness
of his view. There is a possibility, however, that the dangers
to individual liberty which Laski and the other pluralists fear
are dangers which result from tyranny of government and
not necessarily from tyranny of the state. Taney would
doubtless say that the answer lay in more democratic control
of the state through the medium of constitutional expression.
More democracy, not necessarily less state authority.

But it may be that actual democracy is impossible in the
giant modern state. Walter Lippmann has aptly suggested
that the ordinary citizen knows from experience that he is

lat the ordinary citizen knows rr<

81 Laski, A Grammar of Politics, pp. 44-45.

214- ROGER B. TANEY

not really a sovereign. 32 Lippmann and John Dewey have,
perhaps most forcefully among American writers, called at-
tention to the difficulty of popular government in a nation of
over a hundred million people, but both have come back with
the hope that a technique can be developed which will make
popular sovereignty fact as well as fiction. 33 If the technique
cannot be developed, it is possible that the democratic faith
of Taney and the other Jacksonians will have to go the way
of the flatboats and the stagecoaches which they helped to
usher out.

It is difficult to measure Taney's influence on either his
age or our own. It is perhaps most discernible in the trend
toward state protection of the social welfare. Taney's influ-
ence on the Supreme Court was in a number of important
respects a liberalizing one. His Jacksonian democracy went
too deep for it to have been otherwise. Only when the clash
between capitalism and the planting system came to a climax
which threatened to destroy the Union did he find himself
on the conservative side. His chief contribution to constitu-
tional law was in the field of the liberalization of the police
power, a result of his belief in the paramount nature of the
general welfare and the sovereignty of the state.

82 The Phantom Public, p. 14.

83 John Dewey, The Public and Its Problems-, Walter Lippmann, The Phantofa
Public, Public Opinion.

BIBLIOGRAPHY
I. WORKS OF TANEY

A. JUDICIAL OPINIONS

I. A complete list of Taney's Supreme Court opinions is given

below.
dbleman v. Booth and United States v. Booth, 21 Howard, 506

(1858)

Agricultural Bank of Mississippi et al. v. Rice et aL, 4 Howard,

225 (1845)

Aldridge et al. v. Williams, 3 Howard, I (1844)
Alexandrian Canal Co. v. Swann, 5 Howard, 83 (1846)
Almy v. State of California, 24 Howard, 169 (1860)
Andrews v. Pond, 13 Peters, 65 (1839)
Bacon et aL v. Hart, I Black, 38 (1861)
Baldwin v. Ely, 9 Howard, 580 (1849)
Ballance v. Forsyth et aL, 21 Howard, 389 (1858)
Bank of Alexandria v. Dyer, 14 Peters, 141 (1840)
iBank of Augusta v. Earle, 13 Peters, 519 (1839)
Bank of Tennessee etc. v. Horn, 17 Howard, 157 (1854)
Bank of the Metropolis v. New England Bank, I Howard, 234

(1843)

Bank of the Metropolis v. New England Bank, 6 Howard, 212

(1847)

Bank of the United States v. The United States, 2 Howard, Ap-
pendix (1844). Taney did not sit in the Court when this
case was heard, but he wanted his opinion made public, and
so asked that it be published in the appendix.

Bank of Washington et al. v. State of Arkansas et al., 20 Howard,
530 (1857)

Barribeau et al v. Brant, 17 Howard, 43 (1854)

Barrow v. Hill, 13 Howard, 54 (1851)

Barry v. Mercein et aL, 4 Howard, 574 (1845)

Barry v. Mercein et aL y 5 Howard, 103 (1846)

[215]

21 6 BIBLIOGRAPHY

Barton v. Forsyth, 20 Howard, 532 (1857)

Beers v. State of Arkansas, 20 Howard, 527 (1857)

Bern ei al v. Heath, 12 Howard, 1 68 (1851)

Bennett v. Butterworth, 8 Howard, 124 (1849)

Bennett v. Butterworth, II Howard, 669 (1850)

Bentonv. Woolsey, 12 Peters, 27 (1838)

Bloomer v. McQuewan et aL, 14 Howard, 539 (1852)

Bondv. Brown, 12 Howard, 254 (1851)

Bosley et aL v. Bosley's Executrix, 14 Howard, 390 (1852)

Bradstreet v. Thomas, 12 Peters, 59 (1838)

Brewer v. Blougher, 14 Peters, 178 (1840)

Brewsterv. Wakefield, 22 Howard, 118 (1859)

Brig James Gray v. Shif John Fraser et al. } 21 Howard, 184

(1858)

-Bronson v. Kmzie et aL, I Howard, 311 (1843)

Brooks v. Norris, II Howard, 204 (1850)

Brown v. Duchesne, 19 Howard, 183 (1856)

Brown v. Shannon et aL, 20 Howard, 55 (1857)

Brown et aL v. Asfden et aL, 14 Howard 25 (1852)

Bruce et aL v. The United States, 17 Howard, 437 (1854)

Burgess v. Gray et aL, 1 6 Howard, 48 (1853)

Burke v. Games et aL, 19 Howard, 388 (1856)

Callan v. May, 2 Black, 541 (1862)

Campbell et aL v. Boyreau, 21 Howard, 223 (1858)

Carrol et aL v. Dorsey et aL, 20 Howard, 204 (1857)

Carter v. Bennett, 15 Howard, 354 (1853)

Carver v. Hyde, 1 6 Peters, 513 (1842)
Charles River Bridge v. Warren Bridge, II Peters, 420 (1837)

Commonwealth Bank of Kentucky v. Griffith, 14 Peters, 56

(1840)

Congdon et aL v. Goodman et aL, 2 Black, 574 (1862)

Cook v. Moffat et aL, 5 Howard, 295 (1846) Separate opinion.

Coons v. Gallaher, 15 Peters, 18 (1841)

C r aw j ord v. Points, 13 Howard, II (1851)

Curtis v. Martin et aL, 3 Howard, 105 (1844)

Cutler v. Rae, 7 Howard, 729 (1848)

BIBLIOGRAPHY 217

Decatur v. Paulding, 14 Peters, 497 (1840)

DeKrafftv. Barney, 2 Black, 704 (1862)

Den v. Jersey Company, 15 Howard, 426 (1853)

De Valengin v. Duffy, 14 Peters, 282 (1840)

Dinsmanv. Wilkes, 12 Howard, 389 (1851)

Doe v. Beebe et al., 13 Howard, 25 (1851)

Doe et al. v. Braden, 16 Howard, 635 (1853)

Dred Scott v. Sandjord, 19 Howard, 393 (1856)

Ex^arte Crenshaw, 15 Peters, 119 (1841)

Exfarte Gordon, I Black, 503 (1861)

Ex forte Hennen, 13 Peters, 225 (1839)

Ex forte Many, 14 Howard, 24 (1852)

Ex forte Secombe, 19 Howard, 9 (1856)

Ex farte Story, 12 Peters, 339 (1838)

Ex farte Taylor, 14 Howard, 3 (1852)

Forney v. Towle, i Black, 350 (i 86 1 )

Fleming et al. v. Page, 9 Howard, 603 (1849)

Florida v. Georgia, IJ Howard, 478 (1854)

Fontain v. Ravenal, 17 Howard, 369 (1854) Concurring opinion.

Forgay et al. v. Conrad, 6 Howard, 201 (1847)

4,885 Bags of UnseedWills, Claimant; Sears Libellant, I
Black, 1 08 (1861)

Fourniquet et al. v. Perkins, 1 6 Howard, 82 (1853)

Fremont v. The United States, IJ Howard, 542 (1854)

Prevail v. Bache, 14 Peters, 95 (1840)
Fulton v. McAfee, 16 Peters, 149 (1842)
Garcia v. Lee, 12 Peters, 511 (1838)
Garonne, The, II Peters, 73 (1837)
Gayler et al. v. Wilder, 10 Howard, 477 (1850)
Gayler et al. v. Wilder, 10 Howard, 509 (1850)

'Genesee Chief et al. v. Fitzhugh et al, 12 Howard, 443 (1851)
Gibson v. Stevens, 8 Howard, 384 (1849)
Gill v. Oliver's Executors et al, II Howard, 529 (1850)
Goodtitle v. Kibbe, 9 Howard, 471 (1849)
Gordon v. United States, 117 U. S. 697. Opinion prepared by
Chief Justice Taney in 1864. He died before the December

21 8 BIBLIOGRAPHY

term, in which it was to be made the basis of a decision of the
Court, and his opinion was not published until 1886.
Grand Gulf Railroad and Banking Co. et aL v* Marshall, 12

Howard, 165 (1851)
Greely's Administrator v. Burgess et aL, 1 8 Howard, 413 (1855)

Dissenting opinion.

Groves v. Slaughter, 15 Peters, 449 (1840). Concurring opin-
ion.

*&runer v. The United States, II Howard, 163 (1850)
Gue v. Tide Water Canal Co., 24 Howard, 257 (1860)
Gwin et aL v. Barton et aL, 6 Howard, 7 (1847)
Gwinn v. Buchanan, Hagan f? Co., 4 Howard, I (1845)
Haney et aL v. Baltimore Steam Packet Co., 23 Howard, 287

(1859). Dissenting opinion.

Hardeman et aL v. Harris, J Howard, 726 (1848)
Hecker v. Fowler, I Black, 95 (1861)

Heirs of De Armas v. United States, 6 Howard, IO2 (1847)
Hemmenway v. Fisher, 20 Howard, 255 (1857)
Henderson et aL v. Tennessee, 10 Howard, 311 (1850)
Herman v. Phalen, 14 Howard, 79 (1852)
Hildeburnv. Turner, 5 Howard, 69 (1846)
Hodge et aL v. Williams, 22 Howard, 87 (1859)
Hogan et aL v. Ross, II Howard, 294 (1850)
Holmes v. Jennison, 14 Peters, 540 (1840)
Hortsman v. Hens haw et aL, II Howard, 177 (1850)
Hoytv. Shelden, I Black, 518 (1861)
Hudgins et aL v. Kem<p, 1 8 Howard, 530 (1855)
Hunt v. Palao et aL, 4 Howard, 589 (1845)
In re Kaine y 14 Howard, 103 (1852). Taney concurred in dis-
sent with Mr. Justice Nelson.
Insurance Co. of the Valley of Virginia v. Mordecai, 21 Howard,

i 95 (1858)

Jackson v. Hale et aL, 14 Howard, 525 (1852)
Jecker et aL v. Montgomery, 13 Howard, 498 (1851)
Jewell* s Lessee et al. v. Jewell et aL, I Howard, 219 (1843)
Kanouse v. Martin, 14 Howard, 23 (1852)

BIBLIOGRAPHY 219

Keene v. Whitaker, 14 Peters, 170 (1840)

Kelsey v. Hobby, 1 6 Peters, 269 (1842)

Kelsey et aL v. Forsyth, 21 Howard, 85 (1858)

Kendall v. Stokes et aL, 3 Howard, 87 (1844)

Kendall v. United States, 12 Peters, 524 (1838). Dissenting
opinion.

Kennett et aL v. Chambers, 14 Howard, 38 (1852)

-Kentucky v. Dennison, 24 Howard, 66 (1860)

Lambert et aL v. Ghiselin, 9 Howard, 552 (1849)

Larmanv. Ti$dale*s Heirs, II Howard, 586 (1850)

Lattimer v. Poteet, 14 Peters, 4 (1840). Dissenting opinion.

Lawrence v. Caswell et aL, 13 Howard, 488 (1851)

Lea, Rabetaille and Langdon v. Kelly, 15 Peters, 213 (1841)

Lessee of Smith et aL v. McCann, 24 Howard, 398 (1860)

Lewis v. Lewis, 7 Howard, 776 (1848)
^License Cases, 5 Howard, 554 (1846)

Linton et aL v. Stanton, 12 Howard, 423 (1851)

Lordv. Veazie, 8 Howard, 251 (1849)
zLuther v. Borden et aL, J Howard, I (1848)

McBride v. Hoey, II Peters, 1 66 (1837)

McKnightv. Taylor, I Howard, 161 (1843)

McNeil v. Holbrook, 12 Peters, 84 (1838)

Magerv. Grima et aL, 8 Howard, 490 (1849)

Maney et aL v. Porter, 4 Howard, 55 (1845)

Martin v. Waddell, 1 6 Peters, 367 (1842)

Maryland v. Baltimore and Ohio R. Co., 3 Howard, 534 (1844)

Mason v. Gamble et aL, 21 Howard, 390 (1858)

Matheson et aL v. The Branch Bank of Mobile, 7 Howard, 260

Maxwell v. Kennedy et aL, 8 Howard, 210 (1849)

Mayberry v. Thompson, 5 Howard, 121 (1846)

Mills v. Brown, 16 Peters, 525 (1842)

Miners* Bank v. The United States, 5 Howard, 213 (1846)

Mitchell v. Harmony, 13 Howard, 115 (1851)

Mitchell v. Lenox, 14 Peters, 49 (1840)

Montault et aL v. The United States, 12 Howard, 47 (1851)

220 BIBLIOGRAPHY

Montgomery et al. v. Anderson et al., 21 Howard, 386 (1858)

Moore v. Brown et al., II Howard, 414 (1850)

Morgan v. Curtenius, et al., 19 Howard, 8 (1856)

Morsellv. Hall,, 13 Howard, 212 (1851)

Neil, Moore 6? Co. v. The State of Ohio, 3 Howard, 720 (1844)

Neils on v. Lagow, 7 Howard, 772 (1848)

Nelson v. Garland, I Howard, 265 (1843)

Nesmlth et al. v. Sheldon et al., 6 Howard, 40 (1847)

Nesmith et al. v. Sheldon et al., J Howard, 8 12 (1848)

North Carolina, The, 15 Peters, 40 (1841)

Norton's Assignee v. Boyd et al., 3 Howard, 426 (1844)

O'Brien v. Smith, I Black, 99 (1861)

Ohio and Mississi-pfi R. Co. v. Wheeler, I Black, 286 (1861)

Ohio Life Insurance and Trust Co. v. Debolt y 1 6 Howard, 416

(1853)

O'Reilly et al v. Morse et al., 15 Howard, 62 (1853)

Parish v. Ellis, 1 6 Peters, 451 (1842)

Parks v. Turner et al., 12 Howard, 39 (1851)

Passenger Cases, J Howard, 283 (1848). Dissenting opinion.

Payne et al. v. Niles et al., 20 Howard, 219 (1857)

Peede v. Phifp et al., 14 Howard, 368 (1852)

Peck et al. v. Sanderson, 17 Howard, 178 (1854). Dissenting

opinion.
Pennsylvania v. The Wheeling etc. Bridge Co. et al., 13 Howard,

518 (1851)

Peffer et aL v. Dunlaf et al., 5 Howard, 51 (1846)
Perkins v. Fourniquet et al., 6 Howard, 206 (1847)
Perkins v. Fourniquet et ux., 14 Howard, 328 (1852)
Pemne v. Chesapeake and Delaware Canal Co., 9 Howard, 172

(1849)

Phelp v. Mayer, 15 Howard, 160 (1853)

Philadelphia etc. R. Co. v. Maryland, 10 Howard, 376 (1850)
Platenius v. State of Arkansas, 20 Howard, 527 (1857)
Porter et al. v. Foley, 21 Howard, 393 (1858)
Postmaster-General v. Trigg, 1 1 Peters, 172 (1837)

BIBLIOGRAPHY 221

Poydras de la Lande v. Treasurer of Louisana, 17 Howard, I

(1854)

Prevostv. Greneaux, 19 Howard, I (1856)
Prigg v. Pennsylvania, 1 6 Peters, 539 (1842). Dissenting opin-
ion.

Prouty v. Draper, 1 6 Peters, 336 (1842)
Reddall v. Bryan et al., 24 Howard, 420 (1860)
Reedv. Marsh, 13 Peters, 153 (1839)
Remington v. Llnthlcum, 14 Peters, 84 (1840)
Rhode Island v. Massachusetts, 12 Peters, 627 (1838)* Dissent-
ing opinion.

Rhode Island v. Massachusetts, 13 Peters, 23 (1839)
Rhode Island v. Massachusetts, 14 Peters, 2IO (1840)
Rhode Island v. Massachusetts, 15 Peters, 233 (1841)
Rhode Island ^Massachusetts, 4 Howard, 591 (1845). Separate

opinion.

Rhodes v. The Steamship Galveston, IO Howard, 144 (1850)
Rice v. Minnesota and Northwestern R. Co., 21 Howard, 82

(1858)

Richmond v. City of Mllwaukle, 21 Howard, 80 (1858)
Richmond v. City of Milwaukie, 21 Howard, 391 (1858)
Ross v. Prentlss, 3 Howard, 771 (1845)
Rowan et al. v. Runnels, 5 Howard, 134 (1846)
Russell v. Southard et al., 12 Howard, 139 (1851)
Sadler et al. v. Hoover et al, J Howard, 646 (1848)
Saltmarsh v. Tuthlll, 12 Howard, 387 (1851)
Samfson et al. v. Walsh et al., 24 Howard, 207 (1860)
Sarchet v. United States, 12 Peters, 143 (1838)
Savage's Assignee v. Best, 3 Howard, ill (1844)
Searight v. Stokes et al., 3 Howard, 151 (1844)
Sears v. Eastburn, 10 Howard, 187 (1850)
Selden v. Myers et al., 20 Howard, 506 (1857)
Shaffer v. Scudday, 19 Howard, 16 (1856)
Sheffard et al. v. Wilson, 5 Howard, 2IO (1846)
Shields v. Thomas, 17 Howard, 3 (1854)
Sims v. Hundley, 6 Howard, I (1847)

222 BIBLIOGRAPHY

Sixer v. Many, 1 6 Howard, 98 (1853)

Smith v. Clark et aL y 12 Howard, 21 (1851)

Smith v. Ely et aL, 15 Howard, 137 (1853)

Smith et al. v. Condry, I Howard, 28 (1843)

Scalding v. State of New York, 4 Howard, 21 (1845)

Stairs et al. v. Peaslee, 1 8 Howard, 521 (1855)

State Bank of Ohio v. Knoof, 1 6 Howard, 369 (1853). Con "

curring opinion.

Steamer St. Lawrence , I Black, 522 (1861)
Steamer Virginia v. West et aL, 19 Howard, 182 (1856)
Stelle v. Carroll, 12 Peters, 201 (1838)
Stimponv. W estchester R. Co., 3 Howard, 553 (1844)
Strader et al. v. Graham, 10 Howard, 82 (1850)
Swartwout v. Gihon et aL, 3 Howard, 1 10 (1844)
Taylor et aL v. Carryl, 2O Howard, 583 (1857). Dissenting

opinion.

Taylor et aL v. Savage, I Howard, 282 (1843)
Thomas et aL v. O shorn, 19 Howard, 22 (1856). Dissenting

opinion.

Thompson v. Selden et aL, 20 Howard, 194 (1857)
Tolandv. Sp-ague, 12 Peters, 300 (1838)
Tombigbee Railroad Co. v. Kneeland, 4 Howard, 1 6 (1845)
Townsend v. Jemison, 7 Howard, 706 (1848). Concurring

opinion.

Tracy v. Holcombe, 24 Howard, 426 (1860)
Tremlett v. Adams, 13 Howard, 294 (1851)
Trustees for Vincennes University v. Indiana, 14 Howard, 28

(1852). Dissenting opinion.
Udell et aL v. Davidson, 7 Howard, 769 (1848)
United States v. Boisdore y s Heirs, 8 Howard, 113 (1849)
United States v. Booth, 1 8 Howard, 476 (1855)
United States v. Breitling, 20 Howard, 252 (1857)
United States v. Briggs, 5 Howard, 208 (1846)
United States v. Carr et aL, 8 Howard, I (1849)
United States v. Castro et aL, 24 Howard, 346 (1860)
United States v. Coxe, 17 Howard, 41 (1854)

BIBLIOGRAPHY 223

United States v. Curry et aL, 6 Howard, 106 (1847)
United States v. Ferreira, 13 Howard, 40 (1851)
United States v. Guillem, II Howard, 47 (1850)
United States v. Hodge, 3 Howard, 534 (1844)
United States v. King et aL, 3 Howard, 773 (1844)
United States v. King et aL, J Howard, 833 (1848)
United States v. Knight's Administrator, I Black, 488 (1861)
United States v. Le Blanc et aL, 12 Howard, 435 (1851)
United States v. McCullagh et aL, 13 Howard, 216 (1851)
United States v. Morris, 14 Peters, 464 (1840)
United States v. Pacheco, United States v. Hensley, United States
v. Bidwell, and United States v. Sunot et aL, 20 Howard, 261

United States v. Pillerin et aL, 1 3 Howard, 9 (1851)

United States v. Porche, 12 Howard, 426 (1851)

United States v. Reid et aL, 12 Howard, 361 (1851)

United States v. Rogers, 4 Howard, 567 (1845)

United States v. Roselius et aL, 15 Howard, 36 (1853)

United States v. Seaman, IJ Howard, 225 (1854)

United States v. Turner et aL, 1 1 Howard, 663 (1850)

United States v. Wilkinson et aL, 12 Howard, 246 (1851)

United States v. Yates et aL, 6 Howard, 606 (1847)

Van Ness v. United States Bank, 13 Peters, 17 (1839)

Van Ness v. Van Ness, 6 Howard, 62 (1847)

Van Rensselaer v. Watt's Executors, J Howard, 784 (1848)

Villabolos et aL v. United States, 6 Howard, 8 1 (1847)

W abash and Erie Canal v. Beers, I Black, 54 (1861)

Walworth v. Kneeland et aL, 15 Howard, 348 (1853)

Wanzer v. Tupper et aL, 8 Howard, 234 (1849)

Webster v. Cooper, 10 Howard, 54 (1850)

West v. Brashear, 12 Peters, 1 01 (1838)

West v. Brashear, 14 Peters, 51 (1840)

Wiggins et aL v. Gray et aL, 24 Howard, 303 (1860)

Williams v. Ash, I Howard, I (1843)

Williams v. Gibbes et aL, IJ Howard, 239 (1854)

Wilson v. Barnum, 8 Howard, 258 (1849)

224 BIBLIOGRAPHY

Wilson <v. Sandford et aL, 10 Howard, 99 (1850)
Wilson and Co. v. Smith, 3 Howard, 763 (1844)
Wilson's Heirs v. A 7 ", Y. Life and Fire Insurance Co., 12 Peters,

140 (1838)

Winston v. The United States, 3 Howard, 771 (1844)
Wood v. Underhill et aL, 5 Howard, I (1846)
Wylie v, Coxe, 14 Howard, I (1852)

2. Circuit Court Opinions

Taney 's circuit court opinions from 1836 to 1861 are pub-
lished in Campbell, James M., Reports of Cases at Law and
Equity and in the Admiralty determined for the District of Mary-
land by Roger Brooke Taney, Philadelphia, 1871.

The charge to the Grand Jury, Circuit Court of the United
States, April Term 1836, Campbell's Reports, Appendix, p. 6 1 6,
contains a good statement by Taney on law enforcement.

B. LETTERS WRITTEN BY TANEY

A number of letters written by Taney are to be found in
Correspondence of Andrew Jackson, edited by J. S. Bassett, Vols.
V and VI, Washington, 1931; and in Tyler, Samuel, Memoir
of Roger Brooke Taney, Baltimore, 1872.

In addition to those, the following letters were found useful:
To (Nicholas Biddle?) Maryland Historical Magazine , V

(1910), 35-37-

To Martin Van Buren, July 20, 1837, Van Buren Papers (Li-
brary of Congress) .

To Samuel Nott, August 19, 1857, Proceedings of the Massachu-
setts Historical Society, XII (1871-1873), 445-47.

To Franklin Pierce, August 29, 1857, American Historical Re-
view, X (1904-1905), 358-59-

To Franklin Pierce, June 12, 1 86 1, American Historical Review,
X (1904-1905), 368.

A letter from Taney to Jackson in 1838, and one in 1843 are
quoted in part in Charles Warren, The Supreme Court in
United States History, II, 36-38, Boston, 1932.

BIBLIOGRAPHY 225

"Taney's Letters to Van Buren in 1860," communicated by B. C,
Steiner, Maryland Historical Magazine, X (1915), 15-24,
quotes at length from letters written by Taney to Van Buren,
who in the process of compiling his memoirs had asked Taney
for his recollection of certain matters which had occurred in
the Jackson administration.

C. SPEECHES, PUBLIC PAPERS, AND ACCOUNT OF THE
BANK STRUGGLE

Speech in reply to his welcome before the dinner given in his honor
at Frederick, Maryland, August 6, 1834, Tyler, Samuel,
Memoir of Roger Brooke Taney y pp. 226-32, Baltimore,
1872. This speech may also be found in the Daily Albany
Argus, August 30, 1834,

Speech in the court house yard at the festival given in his honor at
Frederick, Maryland, August 6, 1834, Daily Albany Argus,
August 29, 1834. These two speeches at Frederick are ex-
cellent in their revelation of Taney's views of the issues at
stake in the Bank struggle.

Supplement to the Dred Scott opinion, September 1858, Tyler,
Samuel, Memoir of Roger Brooke Taney, pp. 578-608.

"Report of the Secretary of the Treasury on the Removal of the
Public Deposits from the Bank of the United States, made to
Both Houses of Congress, Dec. 4th, 1833," Public Documents
and Proceedings of the Twenty -Third Congress, New York,

1834.

Opinions as Attorney General of the United States. Taney's
opinions as Attorney General are to be found in Official Opin-
ions of the Attorneys General of the United States, compiled
by B. F. Hall, Vol. II, 1825-1835, Washington, 1852.

Roger B. Taney account of His Relations with U. S* Bank, dated
at the beginning, September 14, 1849. 132-page bound
volume in Taney's handwriting, acquired by the Library of
Congress between June 30, 1929 and June 30, 1930.

226 BIBLIOGRAPHY

II. MATERIAL FROM SOURCES CONTEMPORARY
WITH TANEY

Adams, John, The Works of John Adams, edited by C. F.
Adams, 10 vols., Boston, 1851-1856.

Adams, John Quincy, Memoirs of John Quincy Adams, edited by
C. F. Adams, 12 vols., Philadelphia, 1874-1877.

Benton, Thomas H. 5 Examination of that fart of the Decision of
the Supreme Court of the United States in the Dred Scott
Case which declares the unconstitutionally of the Missouri
Compromise Act, and the self -extension of the Constitution to
the Territories, carrying slavery along with it, New York,

1857-

, Speech of Mr. Benton of Missouri against the Renewal

of the Charter of the Bank of the United States, in the Senate
February 2, 1831, Washington, 1831.

-, Thirty Years View, 2 vols., New York, 1858.

Biddle, Nicholas, The Correspondence of Nicholas Biddle, edited

by R. C. McGrane, Boston, 1919.
Buchanan, James, The Works of James Buchanan, edited by

J. B. Moore, 12 vols., Philadelphia, 1908-1911.
Calhoun, John C., The Works of John C. Calhoun, edited by

R. K. Cralle, 3 vols., Charleston and New York, 1851-1853.
The Case of Dred Scott in the United States, New York, The

Tribune Association, 1860.
Clay, Henry, The Private Correspondence of Henry Clay, edited

by Calvin Colton, New York, 1856.
Congressional Globe. The Congressional Globe of various dates

is referred to for speeches and debate.
Daily Albany Argus, August 29, 30, 1834.
The Daily Exchange, May 28, 29, 1 86 1 (Baltimore).
Frederick-Town Herald. Various issues in 1803 anc ^ 1807 are

referred to.
The Globe (Washington). Various issues in 1831 and 1832

were used.
Jackson, Andrew, Correspondence of Andrew Jackson, edited by

J. S. Bassett, 6 vols., Washington, 1926-1933.

BIBLIOGRAPHY 22-7

, Bank Veto Message, July 10, 1832, in Richardson,

J. D., Messages and Papers of the Presidents } II, 5 7 6-9 1 ,
Washington, 1896.

Jefferson, Thomas, The Writings of Thomas Jefferson, edited by
P. L. Ford, 10 vols., New York, 1892-1899.

Kendall, Amos, Autobiography of Amos Kendall, edited by W.
Stickney, Boston, 1872.

Kent, James, Commentaries on American Law, 1 2th ed., edited
by O. W. Holmes, Jr., 4 vols., Boston, 1873.

Madison, James, The Writings of James Madison, edited by Gail-
lard Hunt, 9 vols., New York, 1910.

Maury, Sarah M., The Statesmen of America in 1846, London,

1847.

Miller, Samuel, Memoir of the Rev. Charles Nisbet, New York,
1840.

Monroe, James, Exposition accompanying his veto message of
May 4, 1822, in Richardson, J. D., Messages and Papers of
the Presidents, II, 144-83, Washington, 1896.

The New York Times, May 29, 30, 1 86 1.

New York Tribune , March 7, 13, 1857.

Nisbet, Charles, "Dr. Nisbet's Views of American Society,"
Bulletin of the New York Public Library, I, 117-20, 180-83,
312-15, New York, 1897. Letters written by Dr. Nisbet to
a friend in Scotland.

Parker, Joel, Habeas Corpus and Martial Law. A Review of
the Opinion of Chief Justice Taney, in the Case of John
Merry man y Philadelphia, 1862.

Parton, James, Life of Andrew Jackson, 3 vols., New York,
1860.

Richardson, James D., A Compilation of the Messages and Papers
of the Presidents, 10 vols., Washington, 1896-1899.

Richmond Enquirer } March 3, 1858.

Senate Document 17, 23rd Congress, 2d Session, pp. 44-47 (De-
cember 1 8, 1834).

Story, Joseph, Commentaries on the Constitution of the United

28 BIBLIOGRAPHY

States, 5th ed., edited by M. W. Bigelow, 2 vols., Boston,
1891.

Story, William W., Life and Letters of Joseph Story > 2 vols.,
Boston, 1851.

Strickland, W. P., The Life of Jacob Gruber, New York, 1860.

Taylor, John, An Inquiry into the Principles and Policy of the
Government of the United States, Fredericksburg, 1814.

, New Views of the Constitution of the United States ,

Washington, 1823,

, Tyranny Unmasked, Washington, 1822.

Tucker, Henry St. George, Lectures on Government, Charlottes-
ville, 1844.

Tucker, St. George, Blackstone's Commentaries with notes of
reference to the Constitution and Laws of the Federal Gov-
ernment of the Umted States and of the Commonwealth of
Virginia, 5 vols., Philadelphia, 1803. Volume I was used.
Of this volume 120 pages are devoted to the text of Black-
stone and 446 pages to the appendix which contains Tucker's
discussion of American government,

Votes and Proceedings of the Senate of Maryland, First session of
the gth Senate, 1816; Second session, 1819; Fifth session,
1820.

Upshur, Abel P., A Erie] Enquiry Into the True "Nature and
Character of Our Federal Government, Philadelphia, 1863.
This was originally published in 1840.

Van Buren, Martin, The Autobiography of Martin Van Buren,
edited by J. C. Fitzpatrick, Annual Report of the American
Historical Association for the Year 1918, Washington, 1920.

, Inquiry into the Origin and Course of Political Parties

in the United States, New York, 1867.

-, Van Buren Papers, manuscript form, unpublished, cat-

alogued, Library of Congress.
Van Evrie, J. H., The Dred Scott Decision, New York, 1859.
Webster, Daniel, The Works of Daniel Webster, 8th ed., 6 vols. 3

Boston, 1854*
The World, May 29, 1 86 1 (New York).

BIBLIOGRAPHY 229

III. OTHER MATERIALS

A. CASES OTHER THAN TANEY'S

Austin v. Tennessee, 179 U. S. 343 (1900)

Baker v. City of Boston, 12 Pickering, 184 (Mass. 1831)

Beaty v. Lessee of Knowles, 4 Peters, 152 (1830)

Beer Co. v. Massachusetts, 97 U. S. 25 (1877)

Boise City v. Boise Artesian Hot and Cold Water Co., 1 86 Fed.

705 (1911)

Bowman v. Chicago 6f N. W. R. Co., 125 U. S. 465 (1888)
Boyd v. Alabama, 94 U. S. 645 (1876)
Brick Presbyterian Church v. City of New York, 5 Cowen, 538

(New York 1826)

Brlckhouse et al. v. Hill, 167 Ark. 513 (1925)
Briscoe v. Bank of the Commonwealth of Kentucky, 1 1 Peters,

257
Brown v. State of Maryland, 12 Wheaton, 419 (1827)

Burk v. State, 2 Harris & Johnson, 426 (Maryland 1809)

Burnet v. Coronado Oil and Gas Co., 285 U. S. 393 (l93 z )

C alder v. Bull, 3 DaUas, 386 (1798)

C his holm v. Georgia, 2 Dallas, 419 (l793)

City of Durham v. Eno Cotton Mills, 54 S. E. 453 (N. C. 1906)

City of New Yorkv.Mlln, II Peters, 102 (1837)

Clark v. City of Los Angeles, 116 Pac. 722 (1911)

Cohens v. State of Virginia, 6 Wheaton, 264 (1821)

Commonwealth v. Alger, J Gushing, 53 (Mass. 1851)

Commonwealth v. Tewksbury, II Metcalf, 55 (Mass. 1846)

Cooley v. Board of Wardens of the Port, 12 Howard, 299

(1851)

Dartmouth College v. Woodward, 4 Wheaton, 518 (1819)
Erie R. R. Co. v. Board of Public Utility Commissioners, 254

U.S. 394 (1920)

Ex farte Bollman, 4 Cranch, 75 (1807)
Ex <parte Mllllgan, 4 Wallace, 2 (1866)
Ex <parte Woodward, 6 1 Southern, 295 (Ala. 1912)
Fletcher v. Peck, 6 Cranch, 87 (1810)
Gibbons v. Ogden, 9 Wheaton, I (1824)

23O BIBLIOGRAPHY

Goddardv. Jacksonville, 15 111. 589 (1854)

Hammer v. Dagenhart, 247 U. S. 251 (1918)

Home Telephone &f Telegraph Co. v. City of Los Angeles, 155

Fed. 554 (1907)
Houck v. Little River Drainage Dlst., 154 S. W. 739 (Mo.

Jackson v. Lamfhire, 3 Peters, 280 (1830)

Johnson v. Jones et al., 44 111. 142 (1867)

Knoxvllle Water Co. v. Knoxvllle, 200 U. S. 22 (1901)

Leisy v. Hardln, 135 U. S. IOO (1890)

Magner v. People of Illinois, 97 111. 320 (1881)

McCulloch v. Maryland, 4 Wheaton, 316 (1819)

Marbury v. Madison, I Cranch, 137 (1803)

Missouri v. Holland, 252 U. S. 416 (1920)

Mugler v. Kansas, 123 U. S. 623 (1887)

Munn v. Illinois, 94 U. S, 113 (1876)

Nebbla v. New York, 291 U. S. 502 (1933)

New Jersey v. Wilson, 7 Cranch, 164 (1812)

Nlles v. Rhodes, J Mich. 374 (1859)

Ogden v. Saunders, 12 Wheaton, 213 (1827)

Oklahoma City v. Shields, IOO Pacific, 559 (1908)

Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922)

Peofle v. Gallagher, 4 Mich. 244 (1854)

Pollock v. Farmers Loan and Trust Co., 157 U. S. 429 (1894)

Pratt v. Burckhartt, 299 111. 20 (1921)

Providence Bank <u. Billings and Pitman, 4 Peters, 514 (1830)

Railroad Commission v. Louisville & N. R. Co., 80 S. E, 327

(Ga. 1913)
St. Louis v. St. Louis & S. F. R. Co., 129 S. W. 691 (Mo.

1910)
St. Louis Southwestern Ry. Co. v. Allen et aL, 187 Fed. 290

(1911)

Santo et al. v. State of Iowa, 2 Iowa, 165 (1855)
Southwestern Bell Tele-phone Co. v. Public Service Commission,

262 U.-S. 276 (1922)
State v. Ryman, 57 Atlantic, 6 (Md. 1904)

BIBLIOGRAPHY 23!

State v. Noyes, 10 Foster, 279 (N. H. 1855)

State v. St. Paul etc. Ry. Co., 108 N. W. 261 (Minn. 1906)

State v. Savtdge, 144 Washington, 302; 258 Pac. I (1927)

State v. Standard Oil Co., Il6 S. W. 902 (Mo. 1909)

State of Washington v. W. C. Dawson 6? Co., 264 U. S. 219

(1924)

Steamboat Orleans v, Phoebus, II Peters, 175 (1837)
Stone v. Mississippi, IOI U. S* 814 (1879)
Sturges v. Crowninshield, 4 Wheaton, 122 (1819)
Stuyvestant v. Mayor of New York, J Cowen, 588 (N. Y. 1827)
Territory v. Long Bell Lumber Co., 99 Pacific, 911 (Okla.

(1908)

Thomas Jefferson, The, 10 Wheaton, 428 (1825)
Thorfe v. Rutland &? Burlington R. Co., 27 Vt. 142 (1854)
Truax v. Corrigan, 257 U. S. 312 (1921)
Tyson v. Banton, 273 U. S. 418 (1926)
United States v. Arredondo, 6 Peters, 691 (1832)
United States v. Gooding, 12 Wheaton, 460 (1827)
Vanhorne's Lessee v. Dorrance, 2 Dallas, 304 (1795)
Ware v. Hylton, 3 Dallas, 199 (1796)
Whittington v. Polk, I Harris & Johnson, 236 (Md. 1802)
Willson v. Blackbird Creek Marsh Co., 2 Peters, 245 (1829)
Wynehamer v. State of New York, 13 N. Y. 378 (1856)

B. BOOKS, PERIODICALS, ETC.

Annals of the Congress of the United States, 2nd Congress, 1791-
1793, Washington, 1849.

Aristotle, The Politics of Aristotle, translated by J. E. C. Well-
don, London, 1923.

Bassett, J, S., The Life of Andrew Jackson, New York, 1928.

Beard, Charles A. and Mary R., The Rise of American Civiliza-
tion, 'New York, 1930.

Becker, Carl, The Declaration of Independence, New York,
1922.

Beveridge, Albert J. ? The Life of John Marshall, 4 vols., Boston,

1916.

BIBLIOGRAPHY

**'t3 """*

Biddle George W., "Constitutional Development in the United
States as Influenced by Chief- Justice Taney," pp. 121-99 m
Constitutional History of the United States as seen m the De-
velopment of American Law (A course of lectures before the
Political Science Association of the University of Michigan),
New York, 1889.

Blackstone, William, Commentaries on the Laws of England,
1 3th ed., 4 vols., London, 1 800.

Bodin, Jean, De Refublica Libri Sex, Ursellis, 1601.

Bowers, Claude G., The Party Battles of the Jackson Penod,
Boston, 1922. .

Brandeis, Louis D., "The Living Law," Illinois Law Review, X

(1916), 461-71-

Brown, Ray A., "Due Process of Law, Police Power, and the
Supreme Court," Harvard Law Review, XL (1927),

943-68.

- "Police Power Legislation for Health and Personal

* _ ^ -vr-T TT / \ O yvQ

Safety," Harvard Law Review, XLII (1929), 866-98.
Bryan, William J., A Tale of Two Conventions, New York,

1912. . .

Burdick, Charles K., The Law of the American Constitution,

New York, 1929.
Burke, Edmund, Selected Works, edited by E. J. Payne, 3 vols.,

Oxford, 1878-1881.
Carson, Hampton L., The History of the Sup-erne Court of the

United States, 2 vols., Philadelphia, 1902.
Catterall, Ralph C. H., The Second Bank of the United States,

Chicago, 1903.

Chafee, Zechariah, Jr., Freedom of S fetch, New York, 1920.
"Chief Justice Taney," The Albany Law Journal, VII (1873),

Coles Walter D., "Politics and the Supreme Court of the United
States," The American Law Review, XXVII (1893), 182-

208. .

Commons, John R., and associates, History of Labour in the
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:ooley, Thomas M., Constitutional Limitations, ?th ed., Boston,

:orwb, 3 Edward S., "The Doctrine of Due Process of Law Be-
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366-85, 460-79.
_ 1_ "Freedom of Speech and Press Under the First Amend-

ment," Yale Law Journal, XXX (1920), 48-55-
_ , ^National Sup-emacy, New York, 1913.
Countryman, Edwin, The Supreme Court of the Umted States,

Albany, 1913- _ ... ,, .

Curtis, Benjamin R., A Memoir of Benjamin Robhns Curtv, 2

vols., Boston, 1879. . .

Davis, H. W. C., TA* PO&KM* TAw^fe of Hemnch von 1 rea-

schke, London, 1914- , t i * T ***,

Davis, Jefferson, The Rise and Fall of the Confederate Govern

ment, 2 vols., New York, 1 88 1.
Delaplaine, Edward S., Ch*f Justice Roger B. T*y--H

Career as a Lawyer, reprinted from the Amencan Law Re-

B. Taney-H, Career at the
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waa

Th Albany Law Journal, VIII (1873-1874), ^3^- .
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Elsonf Hlfw, History of the United State, of America, 5

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Farrand, Max, The Records of the Federal Convention of ij8j y
3 vols., New Haven, 1911.

The Federalist. References in this study are to The Foederalist,
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Fletcher, Henry J., "The Civilian and the War Power," Minne-
sota Law Review, II (1918), 110-31.

Freund, Ernst, The Police Power Public Policy and Constitutional
Rights, Chicago, 1904.

Hall, James P., "Free Speech in War Time," Columbia Law
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Hart, Fred B., "Power of Government over Speech and Press,"
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Hegel's Philosophy of Right, translated by S. W. Dyde, London,
1896.

Hill, Frederick T., Decisive Battles of the Law, New York, 1906.

Hobbes, Thomas, Leviathan, London, 1887. (Morley's Uni-
versal Library edition).

Hughes, Charles E., Speech on Taney at Frederick, Maryland,
The United States Daily, September, 28, 1931*

Humphrey, Edward F., An Economic History of the United
States, New York, 1931.

Jacobson, J. Mark, The Development of American Political
Thought, New York, 1932.

Jones, Francis R., "Roger Brooke Taney," The Green Bag,
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La Follette, Robert M., La Follettefs Autobiography, Madison,

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Laski, Harold, J., A Grammar of Politics, New Haven, 1925.

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Locke, John, Of Civil Government, New York, 1924. (Every-
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Lodge, Henry C., Daniel Webster, Boston, 1883.
Lloyd, Henry D., Wealth Against Commonwealth, New York,

1898.
Mason, A. T., Brandeis: Lawyer and Judge in the Modern State,

Princeton, 1933.

McLaughlin, J. K, "Chief- Justice Taney and the American

Catholics," The Catholic World, LXVII (1898), 396-404.

Merriam, Charles E., A History of American Political Theories,

New York, 1928.

Montesquieu, The Sprit of Laws, 6th ed., translated by T. Nu-
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Moore, John B., A Treatise on Extradition and Interstate Rendi-
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Morgan, J. H., Dickinson College, Carlisle, 1933.
Mott, Rodney, Due Process of Law, Indianapolis, 1926.
Muzzey, David S., The American Adventure, 2 vols., New York,

1927. Volume I was cited.
Myers, Gustavus, History of the Supreme Court of the United

States, Chicago, 1912.
Myers, William S., The Republican Party, New York, 1928.

The New York Times, May II, 12, 1918.
Ogg, Frederic A., The Reign of Andrew Jackson, New Haven,

1919.

Paine, Thomas, The Rights of Man, Dublin, 1791.
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Patterson, T. Elliott, "History of the Chief Justices of the United
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236 BIBLIOGRAPHY

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Pollock, Frederick, An Introduction to the History of the Science

of Politics, London, 1925.
Poore, Parley, The Federal and State Constitutions, Colonial

Charters and Other Organic Laws of the United States, 2

vols., Washington, 1877.
Potter, Clarkson N., Roger Brooke Taney, Philadelphia, 1 88 1.

(Reprinted from the Proceedings of the Fourth Annual Meet-

ing of the American Bar Association.)
Proceedings of the Bench and Bar of Baltimore Ufon the Occa-

sion of the Death of the Hon. Roger B. Taney, Baltimore,

1864.

"Roger Brooke Taney," Atlantic Monthly, XV (1865), 151-61.
Ross, E. A., Sin and Society, Boston, 1907.
Rousseau, Jean Jacques, The Social Contract, New York, 1927.

(Everyman edition).
Scharf, J. Thomas, The Chronicles of Baltimore, Baltimore,

1874.

- , History of Maryland, 3 vols., Baltimore, 1879. Volume
III was used.

Schouler, James, History of the United States of America, 5 vols.,
New York, 1891.

- , "Roger Brooke Taney," The United States Jurist, III
(1873), 127 ff.

Semmes, John E., John H. B. Latrobe and His Times 1803-

1891, Baltimore, 1917.
Shauck, John A., "Chief Justice Taney, " The Green Bag, XIV

Smith, Theodore C., Parties and Slavery, New York, 1906.
Steiner, Bernard C., Life of Roger Brooke Taney, Baltimore,

1922.
Stephens, Alexander H., A Constitutional View of the Late War

Between the States, 2 vols., Philadelphia, 1868, 1870.
Taney, Edward S., "Roger B. Taney," The Green Bag, VII

(1895), 361-64 (1895).

BIBLIOGRAPHY 237

Taney, Mary F., "Roger Brooke Taney," Records of the Amer-
ican Catholic Historical Society of Philadelphia, XI (1900),

33 ~ 42 '
Thomas, J. H., Systematic Arrangement of Lord Cokeys First

Institute of the Laws of England) 3 vols., Philadelphia, 1836*
Treitschke, Heinrich von, Politics, translated by B. Dugdale and

T. de Bille, 2 vols., New York, 1916.
Tucker, John Randolph, The Constitution of the United States,

2 vols., Chicago, 1899.

Turner, Frederick J., Rise of the New West, New York, 1906.
Tyler, Samuel, Memoir of Roger Brooke Taney, Baltimore,

1872.
Uhle, John B., "Roger Brooke Taney," Current Comment and

Legal Miscellany, II (1890), 449-60, 513-17.
The Unjust Judge. A Memorial of Roger Brooke Taney, late

Chief Justice of the United States, New York, 1865. This

was an extremely bitter attack on Taney.
Vattel, Emmerich de, The Law of Nations, Dublin, 1792.
Vaughan, C. E., The Political Writings of Jean Jacques Rousseau,

2 vols., Cambridge, 1915.
Vinogradoff, Paul, The Collected Papers of Paul Vlnogradoff,

edited by H. A. L. Fisher, 2 vols., Oxford, 1928.
Waite, Charles B., "Roger B. Taney," The Chicago Law Times,

II (1888), 3I7-327-

Walter, J. A., A letter about Taney written to the Century Mag-
azine, IV (1883), 957, 958.

Warren, Charles, A History of the American Bar, Boston, 1911.

, "Lincoln's 'Despotism' as Critics Saw it in 1 86 1," The

New York Times, May 12, 1918.

' , The Supreme Court and the Sovereign States, Princeton,

1924.

-, The Supreme Court In United States History, revised

edition, 2 vols., Boston, 1932.
Willoughby, Westel W., An Examination of the Nature of th$
State, New York, 1896,

238 BIBLIOGRAPHY

, The Constitutional Law of the United States, 2nd. ecL, 3

vols.j New York s 1929.
Wilson, Woodrow, The Public Papers of Woodrow Wilson, The

New Democracy, edited by R. S. Baker and W. E. Dodd, 2

vols., New York, 1926.

INDEX

v. Sooth, 18, 31-32, 53,
86-88, 90-91, 98, 153, 206, 207
Adams, John, 84. n.
Aliens, status of, 39

American Insurance Co. v. Canter, 158
Atlantic Monthly, criticises Taney, 20

BALDWIN, Justice Henry, 30 n.

Bank of the United States, Taney's part
in struggle with, 16, 66-78; case in-
volving claim, 47} mentioned, 114,
211

Bank of the United States v. The
United States, 47

Bank of Washington v. State of Arkan-
sas, 47

Barbour, Justice Philip P., 124

Beers v. State of Arkansas, 46-47

Benton, Thomas H., 69

Blackstone, Sir William, 43, 58, 59-60,
107, 191

Bodin, Jean, 41 n., 43

Boyd v. Alabama, 50-51 n.

Brandeis, Justice Louis D., 61 n., 99 n.,
112, 206

Brewer, Justice D. J., 140

Brig James Gray v. Ship John Fraser,
et al., 128-29

Brown v. Maryland, 90-130

Bryan, W. J., 65, 67

Buchanan, James, 98, 173

Burke, Edmund, 172, 178, 195, 197

Burke v. State, 143 n.

\LHOUN, John C., 13, 82, 83, 92-
93, 96

Cambreleng, C. C., 66 n.

Carroll, Charles, 12

Charles River Bridge v. Warren Bridge,
important Taney decision, 17; liberal
decision, 18; quoted, 62 n., 78-79$
mentioned, 105,- police power, 106-20

Chase, Jeremiah Townley, influence on

Taney, 7, 34
Chase, Samuel, 7n.j belief in natural

rights, 24; theory of the nature of

the Union, 84-85; natural law, 122-

23

Chiskolm v. Georgia, 30, 87
Citizens In the state, 37, 38, 39
City of New York v. Miln, 104, 123-24
Clay, Henry, opinion of Taney, 15
Cohens v. State of Virginia, 54 n.
Coke, Lord Edward, 63
Common law, 60, 62, 63
Commonwealth v. Alger, 122
Compact theory, 27-29, 32, 34, 43, 52
Constitution, 32, 36, 52, 54-55, 56-58,

85-88, 89, 90, 93, 97, 99, 105, 107,

155, 167-70, 19^-95, *99> 206-7
Contract theory, 24
Cooley, Chief Justice T. M., 123
Crittenden, Senator J. J., 157
Curtis, Benjamin R., description of

Taney, 18-19$ mentioned 161, 170
Curzon, G. N., Earl, 195, 196

Exchange, The, 2OO

Dartmouth College v. Woodward, no,
117-18

Davis, Jefferson, 93 n.

Davis, John, in

Democracy, 25-26

Dickinson College, 5

Dorr Rebellion, 53

Drayton, William H., 13

Dred Scott case, decision regarded with
hostility, 17, 19-20; important Taney
decision, 18; gives clues to Taney's
belief in compact theory, 28; sup-
plement, 28, 36, 37, 84; quoted from,
37-38, 84, 85$ mentioned, 138, 141,
206 j discussed, 155-76.

[239]

INDEX

ELLIOTT, Thomas, ii

Erie Railroad Co. v. Board of
Utility Commissioners, 133

Ex parte oilman, 188

Ex parte Merry-man, important Taney
decision, 185 Republican hostility to-
ward, 19; discussed, 185-955 men-
tioned, 33, 53, 206, 209, 211

Ex parte Milligan, 189 n., 191-92, 195

FEDERALIST, The, 55, 89, 93

Federalists, 24-25, 925 Federalist-con-
trolled Court, 26
Field, David Dudley, 191
Field, Justice Stephen J., 50 n.
Fitzpatrick, Senator Benjamin, 159
Fleming, et al. v. Page, 32, 90

GARONNE, The, i 4 g

Gene 3 see Chiej v. Fitzhugh, important
Taney decision, 18$ break with rule
of stare decisis, 61, 62, 99-101

Gibbons v. Ogden, 85, 109

Globe, The, 69

Government, viewed as agent of sov-
ereign, 48-49

Grants-in-aid, 103

Grier, Justice Robert O, 171

Groves v. Slaughter, 150-51

Gruber, Reverend Jacob, 142-44, 178-
80

H.AMILTON, Alexander, 49, 55 n.

Hammer v. Dagenhart, 132

Hegel, 193

Hobbes, 41 n.

Holmes, Justice Oliver Wendell, 123,
133, 140, 176

Holmes v. Jenntson, 97-98, 128

Hughes, Chief Justice Charles E., ref-
erence to Taney, 20-21

INDIVIDUALISM, 26

Iredell, Justice James, 87

JACKSON, Andrew, attracts Feder-
alists, 12-135 correspondence with

Monroe, 13; appointees on the Su-
preme Court, i6j Bank veto mes-
sage, 50, 60, 77-78; bank struggle,
66} letter to, 725 letter to, 74, 102,

121

Jacksonian democracy, theory expressed
by Taney, 3, 27; at time of Taney's
appointment to the Court, 25; pro-
duced no great political theorists, 27;
Taney a leader, 66; mentioned, 65,
196-97

Jay, Chief Justice John, 30

Jefferson, Thomas, 65, 66 n., 75, 76,
91-92, 96, 146-47, 156; 212

Jeffersonfan Democracy, 65, 92

Johnson, Reverdy, 15, 21, 90 n., 108

JX.ANSAS, slavery in, 156-58
Kennett et al. v. Chambers, 32 n,
Kent, Chancellor James, 6 1 n., 117
Kentucky v. Dennison, 32, 44, 85, 101-

2, 151

Key, Francis Scott, 10
Knoxville Water Co. v. Knoxville, 119

LAFOLLETTE, Robert M., 65-66,

68 n.

Laski, Harold J., 213, 214
Latrobe, John H. B., description of

Taney, 19

License Cases, 17, 18, 51, 54, 130-40
Lincoln, Abraham, 197-99
Lippmann, Walter, 213, 214
Livingston, Edward, 66 n.
Lloyd, Henry D., quoted, 80
Locke, John, 23, 24 n., 25, 26, 41 n.,

51 n.
Luther v. Borden, 32, 53, 104

McCULLOCH v. Maryland, 87, 95
McLane, Louis, 66 n.
McLean, Justice John, 160-61, 171
McReynolds, Justice James C., 140
Madison, James, 55, 89, 93-94
Mager v. Grima, et al., 46
Mar bury v. Madison, 55
Marshall, John, 14-16, 24, 54 n., 55,
61 n., 78, 85, 87, 95-98, 104, 108-

INDEX

241

130, 140, 188, 191,

10, 112, 123
197, 207-8

Martin v. Waddell, 84

Maryland, Declaration of Rights, 34

Mason, Senator James M,, 159

Merryman, John. See Ex parte Merry-
man.

Missouri Compromise, 160, 165, 170-71 SsWARD, William H., 157, 173-74

Mitchell v. Harmony, 182-84

Monroe, James, 34

Montesquieu, 35

Roosevelt, Theodore, period of trust

busters, 76

Ross, E. A., quoted, 73 n.
Rousseau, Jean Jacques, 22, 23, 26, 33,

35, 41-42, 43, 49, 52 n., 65, 203-4
Rowan et al. v. Runnels, 104

N

I ATURAL rights, 24, 27, 28, 40
Nebbia v. New York, 136
Nelson, Justice Samuel, 160
New York Times, 190, 193, 200-201
New York Tribune, 173
Nisbet, Dr. Charles, 5-7, 197
Nott, Reverend Samuel, 144

\JJilO Life Insurance and Trust Co.

v. Debolt, 50, 80, 205
O'Neil, Peggy, 13

Jr AINE, Thomas, 29 n.

Parish v. Ellis, 62 n.

Passenger Cases, 60, 89, 101, 124-27,
202-3

Paterson, Justice William, 55

Pennsylvania v. Wheeling Bridge Co.,
62 n.

Perrine v. Chesapeake and Delaware
Canal Co., 79

Pierce, Franklin, 158

Pitt, William, 196

Police Power, states cannot barter
away, 50-51; mentioned, 104; defini-
tion, 1 06-8; early development In the
United States, 107-10; as affected by
the Charles River Bridge decision,
no-20; extended by Taney, 121-40

Polk, Senator Trusten, 200

Prigg v. Pennsylvania, 104, 152-53

J[\.HODE Island v. Massachusetts, 30

n., 44
Richmond Enquirer, The, 174

Shaw, Chief Justice Lemuel, 122

Sovereignty, 27, 29-105, 192, 202-14

Stare decisis, 6 1

Stephens, A. H., 93 n.

Stone v. Mississippi, 51

Story, Justice Joseph, 61 n., 82, 84 n.,

96, 104, 105, 116-17, 124, 152, 188,

191

Strader et al. v. Graham^ 150, 168
Starges v. CrotcninsMeld, 95, 97-98,

1 08

, Michael, 4, 5

Taney, Monica Brooke, 4, 5

Taney, Roger B., expression of theory
of Jacksonian Democracy, 35 author
of Dred Scott decision, 4; early life,
5-10; attitude toward War of 1812,
10; member of State Senate, 10-11;
removal to Baltimore, ii; standing
as a lawyer, 11-12; changes to Dem-
ocrat, 12; adviser of Jackson, 13-
14; becomes Chief Justice, 14; re-
sult of appointment, 15-16; dem-
ocratic philosophy, 16-17, 210-12;
description of, 18-19; death, 19;
opinions of critics, 19-21; belief In
sovereign power of state, 22, 202-3 ;
individual liberty, 22; intellectual
background, 22-23 5 spokesman of
Jacksonian theory, 27; belief in so-
cial compact, 27-29; belief in legal
rights, 27-28; theory of sovereignty,
29-64; nature of the Union, 30-38,
42, 82-105; similarity to St. George
Tucker, 32 n.; similarity to Rousseau,
22, 33, 36; similarity to Monroe,
34; belief in supremacy of law, 36;
obligation of International law, 445
distinguishes between government

242

INDEX

and sovereign, 485 differs from Rous-
seau, 49; author of Bank Veto Mes-
sage, 50 n. ; construction of police
power, 51 n. ; sovereign will de-
termined legally, 52-545 the consti-
tution as the supreme law, 54, 206,
207$ judicial review, 54-55; differ-
ence between law and constitution,
55-56; interpretation of constitution,
56-58; Interpretation of law, 58-64;
belief in popular sovereignty, 65,
212; champion of popular control of
government, 65, 66, 80, 8i; part in
bank struggle, 66-78; construction of
corporation charters, 78-80, 114-20;
part In development of police power,
1 06, 1 08; Charles River Bridge case
and police power, 110-20; extension
of the police power, 121-40; defini-
tion of police power, 134-36; per-
sonal attitude toward slavery, 141-
47; judicial treatment of slavery
question, 147-54; Dred Scott case,
155-76; individual rights, 177, 201;
free speech, 178-80; property rights
in war-time, 180-85; decision in the
Merryman case, 185-95; legal nature

of the state, 203-6; belief in im-
portance of Supreme Court, 207-10
Taylor, John, 75, 77, 91-92, 96
Taylor et al. v. Carryl t 90, 99
Thomas, John Hanson, 8
Treitschke, Heinrich von, 193
Trumbull, Senator Lyman, 158
Tucker, St. George, 32 n., 84 n.

UNITED States v. Goo ding, 143 n.
United States v. Guilem, 180-82
United States v. M 'orris } 149
Unjust. Judge, The, 20

VAN Buren, Martin, 170-71, 207-8
Vattel, 91 n.

WAITS, Chief Justice M. R., 51

Ware v. Hylton, 84

Warren, Charles, 60, 85 n., 100

Wayne, Justice James M., 171

Webster, Daniel, 82, Hi, 112

Williams v. Ash, 150

Willoughby, W W., quoted, 191

Wilson, James, 94-95, 96

Wilson, Woodrow, 66, 76

World, The (New York), 190, 193,

201

= 00

1 03 699